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Brad Holland
COPYRIGHT ALERT: DEADLINE TUESDAY
posted:
WHO'S GOING TO RUN THE COPYRIGHT OFFICE?
 
If you care about protecting the rights to your work, it's important that you respond to this Library of Congress survey before next Tuesday, January 31.
The survey is short – only a few words to fill in about yourself and 3 questions to answer – and if you don't have time to write, you can copy and paste from the suggested responses I'll post below.
Here's the story in a nutshell: Dr. Carla Hayden, the new Librarian of Congress, has fired the head of the Copyright Office and is soliciting advice on the "knowledge, skills and abilities" people think the new Register should have.
 
It has been widely reported that Dr. Hayden supports the agenda of the anti-copyright lobby. So if past is prologue, these corporate interests will use her "survey" to gin up an astroturf response from their supporters. Then they can take the results to Congress to claim that the American people want art on the Internet to be free.




 
To counter this lobbying tactic, creators must respond in numbers with a call to retain the full protections of copyright as articulated in Article I Section 8 of the Constitution.

Please take the time to go to the Library of Congress survey website, say a few words about yourself and respond to their three questions.

Here are some suggested responses to the 3 questions:

1. What are the knowledge, skills, and abilities you believe are the most important for the Register of Copyrights?

An unbiased Register of Copyrights should:

Understand the need to protect copyrighted material as the private property of creators.

Understand that copyright protections afforded creators DO NOT rob the public of an imaginary entitlement.

Understand and appreciate that most creators are small business owners who operate in a business world in which large content firms enjoy unequaled bargaining power.

Understand that corporations don't create; individuals do.

Understand that copyright protects both the business interests of professional creators and the personal privacy rights of all citizens.

Understand that copyright is a human right– not one bestowed by government – as codified in Article 27 of the Universal Declaration of Human Rights and that all creators therefore enjoy "the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he [or she] is the author."

Understand that creators are individuals who lack the lobbying resources  of large corporations with multi-million dollar lobbying budgets and full time lobbyists.

Recognize and appreciate that Article 1 Section 8 of the Constitution specifies that creators enjoy copyright as an "exclusive right" and does not contain any provision for creating new rights for users by means of statutory legislation.

Understand that any effort to curtail the "exclusive rights" of creators, as defined by Article 1 Section 8  would degrade that Constitutional right to a non-exclusive right and would therefore be UNconstitutional.

Recognize that any effort to re-introduce mandatory registration (even as a de facto requirement)  would create an impossible burden of compliance on creators and result in millions of managed copyrights falling through the cracks and into the public domain.

Refrain from recommending any ex post facto copyright legislation to Congress: any laws applied retroactively to work created under existing copyright law would only create massive uncertainty in commercial markets, invalidate contracts past and present, and therefore harm creators and clients alike.

An unbiased Register should NOT be a former lobbyist, lawyer, law professor, etc. associated with big internet firms or with institutions that receive or have received funding from such firms.

An unbiased Register should NOT have lobbied for orphan works legislation, open source content or been associated with firms that have lobbied for those interests.

A Register should guarantee that any exceptions to an author's exclusive right recommended to Congress fully pass the Three Step Test of  the Berne Convention and international copyright-related treaties; i.e:  

Any exception to an author's exclusive copyright should be limited to


a.) certain special cases, provided
b.) that such reproduction does not conflict with the author's normal exploitation of the work and
c.) does not unreasonably prejudice the legitimate interests of the author.

 2. What should be the top three priorities for the Register of Copyrights?

1. End work-for-hire abuses by corporations which use their superior bargaining power to forcibly acquire copyrights from creators as a pre-condition of doing business.

2. Correct the current orphan works lobbying effort to ensure that only work which has been truly abandoned by creators will be affected by orphan works legislation.

3. Recommend to Congress that it pass the legislation previously introduced as H.R.1881, The American Royalties Too Act of 2015, providing visual artists with the means to manage their secondary rights collectively, collect royalties currently lost from blanket licensing schemes, and obtain royalties from the re-sale of original works.
 

3. Are there other factors that should be considered?

We believe that the new Register of Copyrights should have a creator's business background. For the following reasons:

a.)  Article I Section 8 of the Constitution defines copyright as the exclusive right of creators and does not mention users at all.

b.)  Unlike individuals, corporate interests have the resources to retain full-time lobbyists, publicists, funded academics, etc. to lobby government on behalf of their interests;  a Register with a creators business background would partially redress that profound economic imbalance.

c.)  The digital world has created unique business challenges for creators. We deserve the time to adapt our business models to this new environment and not have business models imposed on us by people with no practical business experience or concern for our interests.

D.) Lawmakers and civil servants have neither the time nor the expertise to devise business models for the myriad business interests of creators; and those recommending legislation have frequently shown little or no interest or willingness to learn.

A Register would do well to understand the principle made famous in the timeless economic fable "I Pencil", which details the complexity of creating something as simple as a common lead pencil and stresses that none of the business interests necessary for its manufacture and marketing have sufficient knowledge of that complexity to mastermind its creation:

"The lesson I have to teach is this: Leave all creative energies uninhibited. Merely organize society to act in harmony with this lesson. Let society's legal apparatus remove all obstacles the best it can. Permit these creative know-hows freely to flow. Have faith that free men and women will respond to the Invisible Hand. This faith will be confirmed."

 
4. The survey also has an item #4, where you can upload additional comments as a pdf. Consider  identifying yourself as a creator (and not a user) and make a personal statement:

I am a professional freelance artist and small business owner. I've been in business for ___ years. I specialize in _____. I am wholly responsible for all my business and overhead expenses. I pay my own insurance premiums and health care expenses. I fund my own retirement plans and have no other safety net. I earn my entire income from the licensing of my copyrighted work, so it is critical for my ability to earn a living that the US continue to provide creators like me with the full protections of existing copyright law.

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