What are Reprographic Rights?

What are Reprographic Rights?
Dr. Michael Shapiro, Esq.

As the creators of original works of art, artists have the right to decide when and where their works are reproduced or copied. Reprographic rights are a type of reproduction right. The most common example is photocopying. Anytime a library patron uses a photocopy machine to copy protected works (whether text or visual art), the author’s reprographic right is being exploited.

But reprographic rights include much more than just photocopying. Reprographic rights also encompass, among other things, copying and storing creative works through microfilm, microfiche, computer and digital technologies. For many years, visual artists paid little attention to managing the reprographic rights in their works. But as the use of digital technologies by art creators and users rapidly increases, artists are beginning to recognize the importance of their reprographic rights.

How are Reprographic Rights Administered?

When an artist works with a client, rights are usually managed under an individual license or contract. For example, under the contract an artist may decide to grant “one-time, North American print rights” for a specific project. But managing reprographic rights is more difficult. For example, how would an artist living in San Francisco know if a library user in New York were photocopying her work without permission? Monitoring such secondary uses becomes even more difficult in today’s global market. To address these and other problems (such as the large number of works and artists), reprographic rights are often managed on a “collective” basis.

Under a collective administration approach, a single organization has the responsibility for monitoring and enforcing rights and for collecting and distributing royalties to the rightsholder. In the United States, for example, the Copyright Clearance Center (CCC) grants licenses to universities, libraries, corporations and other users for the photocopying of published materials. In the year 2000, the CCC returned $57 million to rightsholders (mostly publishers) for photocopying of printed pages in books, journals and other printed materials.

The collection and distribution of royalties for use of reprographic rights abroad is accomplished under a network of “reciprocal agreements” between Reprographic Rights Organizations (RROs) around the world. Under these agreements, artists and writers outside of the United States annually receive compensation for the use of their reprographic rights. Regrettably, without an organization advocating the interests of professional illustrators, U.S. artists rarely, if ever, have received any compensation for the exploitation of their reprographic rights.

Excerpted from “Reprographic Rights and the Visual Artist” by Dr. Michael Shapiro, Esq. 2001
For the full text, see the article here.

Protecting Your Rights Collectively

Protecting Your Rights Collectively
Bruce Lehman, Esq.

The collective rights licensing mechanism reaches its highest form in this country, and, indeed, throughout the world, in the form of organizations such as ASCAP (American Society of Composers, Authors, & Publishers) and BMI (Broadcast Music Incorporated), both music rights organizations. ASCAP was formed on the cusp of a technological revolution. Radio came along about 1920. Radio stations initially broadcast music performed live by studio orchestras. ASCAP extended the same licensing system that they had developed for vaudeville theaters, saloons and restaurants—to radio. So, with radio, a whole new industry, a whole new source of revenue, opened up to them.

Today, ASCAP, and BMI, a similar organization formed in the 1940’s, collect and distribute over one billion dollars of licensing revenue to composers and lyricists and their music publishers in the United States.

Illustrators are a lot like composers at the turn of the century. You get most of your money from commissioned work. And traditionally you have been able to make a nice living that way. But the world has gotten very big and I don’t think there is a single situation in which a professional illustrator is at a competitive advantage when dealing with any client. Under copyright law, it is very easy for a client to say, “If you want any more work from us, you have to sign a work-for-hire contract.” Yet, if you want to band together with other illustrators and demand a standard collective bargaining agreement, you are told “no.” Under the National Labor Relations Act, independent contractors don’t have a right to form a union. You would have to change the National Labor Relations Act to permit you to have a collective bargaining agency.

But there is something you can do. The technology that is evolving permits a wider use of secondary use of your work. It wasn’t that long ago that you needed a professional printer to make a good copy of a professional illustration. Now we have copying technologies that have become easier and ubiquitous. In fact, we are on the verge of a seismic shift—comparable to radio in the 1920’s—that is the Internet. The Internet has the capacity to seize images and send them around the world in digital form so they can be produced with original quality.

Now, that is a scary thing if you can’t control your rights. But if you can, it may be an opportunity. You need to create an artist-controlled mechanism to enforce those copyrights, so that however the work is licensed, the artist retains control.

This is excerpted from a speech given in July 2000 to the Association of Medical Illustrators at the Mayo Clinic in Rochester Minnesota. Bruce Lehman is a former Assistant Secretary of Commerce and U.S. Commissioner of Patents and Trademarks. He was principal legal advisor to Congress in the drafting of the 1976 Copyright Act.

Copyright 2000 Bruce Lehman
     
For full text, see the article here.

A Reprographics Licensing Scenario

A Reprographics Licensing Scenario
Bruce Lehman, Esq.

There is an organization called the Copyright Clearance Center (CCC), which was formed to deal with the problem of large scale photocopying of works. A good example of this is the Mayo Clinic. The Mayo Clinic is a very large institution. And I am sure there are photocopying machines here turning out copies of articles in medical journals by the ton. I would guess that the Mayo Clinic has a license from the CCC that gives it the legal right to photocopy those articles. Publishers, which are members of CCC have authorized the CCC to license the Mayo Clinic. So the CCC now is receiving about 80 million dollars a year in photocopying royalty revenue, which is redistributed to their publisher members.

These photocopying licenses probably deal disproportionately with scientific and technical journals. That means medical journals contain a lot of your stuff. Have any of you ever seen a check from CCC? Where is your piece of this $80 million bucks?

CCC is giving photocopying licenses. But it and some other groups are now beginning to develop some mechanism for granting electronic reprint licenses. I think that it is probable that photocopying will kind of disappear in the next few years. As everything is digitized and everything is on hard drive or floppy disks, PowerPoint, etc, you will just simply reprint from the electronic media. CCC is developing those reprint licenses.

There is nothing untoward about this. You know, if you are the Mayo Clinic, or Mobil Oil Corporation or AT&T, you are photocopying or reprinting all kinds of articles. You want to do it in a lawful manner. That is why companies pay licensing fees to CCC. When you pay CCC you want to be covered. You want an insurance policy.

What the Mayo Clinic gets from the CCC is a blanket license. They pay a certain amount of money to CCC, which then takes that money and distributes it to publisher rights holders on the basis of various methods of tracking use; and to give you an idea of the potential volume here - $80 million for photocopying, believe me, the CCC has a lot of room to get more business. It should be licensing five times that amount, probably.

I would guess that every single one of you is aware of a situation in which an institution has photocopied a text using your work, or has electronically reprinted it. Your rights have not been cleared. I don’t think it is because anybody wants to be mean. There is no mechanism to clear the rights.

Clearing rights would be done just like ASCAP and BMI, on a nonexclusive basis. You would be able to make whatever deal you wanted to do with your work. But for certain purposes, particularly these blanket licenses, you would just let this licensing arm do it for you. It might be an automated process. But where you are dealing with an art director who has a consistent source of business for you, you want to make sure that you control those transactions very carefully. You don’t want any blanket license there.

Excerpted from a speech given July 2000 to the Association of Medical Illustrators at the Mayo Clinic, Rochester Minnesota. Bruce Lehman is a former Assistant Secretary of Commerce and U.S. Commissioner of Patents and Trademarks. He was chief legal advisor to Congress in the drafting of the 1976 Copyright Act.

 Copyright 2000 Bruce Lehman

For full text, see the article here.

American Illustrators' Declaration of Unity

FROM THE ILLUSTRATORS’ PARTNERSHIP

Text of U.S. Illustrators’ Declaration of Unity, presented at the Conference of the International Federation of Reproduction Rights Organizations (IFRRO), November 2, 2006, Auckland, New Zealand. This agreement led to the founding of the American Society of Illustrators Partnership (ASIP) in October 2007.

I want to thank the Board of IFRRO for this opportunity to give a status report on the efforts of the Illustrators' Partnership to unify American Illustrators.

For years it's been a cliché among publishers that you can't work with artists because they can never speak with one voice. In a sense the criticism has some merit, but the problem is a structural one. American antitrust law prevents freelance artists – "independent contractors" as we’re known for legal purposes – from banding together in any effective way to bargain with publishers. So with each artist forced to act on his own, and each artists' organization forced to speak for itself, discordant voices are more likely to be the result of isolation and lack of information than actual disunity.

But a law that says we can't speak with one voice can't stop us from each independently saying the same thing—especially when what we're saying reflects common sense.

So with that in mind, over the last few years and especially in the last few months, the Illustrators' Partnership has brought together a critical mass of almost every major illustrators' group in the U.S. Our hope is that we can find a way to work with the Copyright Clearance Center before the ad hoc arrangements of the past become settled expectations in the marketplace.

The groups we've brought together include medical illustrators, architectural illustrators, natural science illustrators, aviation artists, cartoonists, editorial, book, advertising and institutional illustrators. We've got illustrator organizations from the population centers of San Francisco, Los Angeles, San Diego, Pittsburgh, and the Washington D.C. area – as well as the National Society of Illustrators, which for over 100 years has been the preeminent illustrators' organization in the U.S. and whose Director, Terrence Brown, has played a decisive role in finalizing this alliance.

The Boards of these organizations have voted on and endorsed the following statement:

“The American Illustrators’ Partnership is a national illustrators’ rights organization representing some of the most prolific and widely published illustrators in the world. The majority of these artists are independent contractors who have retained reproduction rights to the bulk of their published works, and have made clear their desire to maintain and manage their copyrights.
 
“The Illustrators’ Partnership is supported by 12 independent graphic arts organizations whose combined membership numbers over 4,000 artists and cartoonists. They have come together in hopes of protecting the rights of their members collectively, and their boards have endorsed our efforts to bring accountability to the reprographic rights of American popular artists.
 
“Our organizations have not transferred our members’ mandate to collect print or digital reprographic rights to any other U.S. organization, nor have the majority of our individual members knowingly or willingly given any U.S. organization such a mandate.
 
“The great body of American illustrators wish to participate in the sharing of reciprocal rights agreements in the international reproduction rights community. Until now most American artists were even unaware that reprographic royalties are being collected and distributed throughout the world.
 
“The Board of Governors of each organization supporting the Illustrators’ Partnership affirms their intent to unite to constitute the relevant rightsholder class of the American illustration repertoire of published works. In this regard we have expressed our willingness to work with the Copyright Clearance Center (CCC).”


Because of this unity, we believe we have a unique moment in which American popular artists can all come together—if not with one voice, then with independent voices speaking in concert—to express our desire to work with the Copyright Clearance Center in a constructive way to clear and license the rights of visual artists as authors, both now and going into the digital future.

Brad Holland, on behalf of the following organizations:

The American Illustrators' Partnership
The Association of Medical Illustrators
The Society of Illustrators New York
The American Society of Architectural Illustrators
The National Cartoonists Society
The Guild of Natural Science Illustrators
The San Francisco Society of Illustrators
The Pittsburgh Society of Illustrators
The American Society of Aviation Artists
The Society of Illustrators Los Angeles
The Society of Illustrators of San Diego
The Illustrators Club of Washington DC, Maryland and Virginia

ASIP invites other visual arts organizations to join us to protect the rights of all published illustrators. To join, please download the Reprographics Authorization & Agreement, available here.


Please post or forward this statement in its entirety to any interested party.

Reprographic Royalties

Reprographic Royalties
Efforts Are Being Made To Compensate American Illustrator
Cynthia Turner

A report on the progress of the Illustrators’ Partnership Reprographic Coalition in preparation for the formation of the American Society of Illustrators’ Partnership, published in The Picture Professional, Spring 2007

Many artists don’t know it, but they may be entitled to reprographic royalties any time their published work is photocopied by libraries, institutions, corporations and other users. Reprographic royalties are monies earned when copyright collecting societies license secondary rights to users to photocopy or digitally republish previously published material anywhere in the world. Reprographic royalties may derive from articles, cartoons, illustrations, photographs, maps, charts, and other works in various published media.

Reprographic rights are held individually by each artist but are licensed collectively by a collecting society that artists have mandated to administer these rights. Regrettably, there is no collecting society to represent American illustrators, and therefore they do not receive any compensation for the exploitation of their reprographic rights.

Worldwide, the visual artists’ share of reprographic collections averages 15 percent of total collections. This is expected to increase dramatically with the growing digital republication of published material. Germany is reporting 40 percent of collections attributable to visual art when digital licensing is available.

Status of domestic royalties due visual artists

In the United States, total collections of reprographic licensing by the Copyright Clearance Center (CCC) exceed 130 million dollars annually. CCC distributes some of this money to writers, but it doesn’t return any to visual artists because it does not acknowledge illustrators, fine artists or photographers as authors.

Status of overseas royalties due visual artists

Foreign countries do collect royalties for American illustrators, but they can’t pay them because there’s no properly chartered reprographic rights organization in the United States to track usage and distribute the money properly. Some money is being returned to the United States but is going unaccounted for. American fine artists’ overseas reprographic rights have been protected; fine artists are paid their foreign-earned reprographic royalties through an appropriately chartered organization: The Artists’ Rights Society (ARS).

An American Illustrators’ Collecting Society

Illustrators were advised to claim their own reprographic royalties at the first Illustrators Conference in 1999. The advice came from intellectual property expert Bruce Lehman, former director of U.S. Patents & Trademarks and principal author of both the1976 Copyright Act and the Digital Millennium Copyright Act. Lehman endorsed the conference founders’ proposal for a visual arts collecting society and he compared the digital revolution in visual arts licensing to that of songwriters at the dawn of the radio age. Just as songwriters had united to form the American Society of Composers, Authors and Publishers (ASCAP) to protect their rights collectively, Lehman advised illustrators to do the same. At the invitation of conference founders, Lehman then agreed to become a founding board member of the Illustrators’ Partnership of America (IPA).

Since then, the IPA has united 12 U.S. illustration associations to form The American Illustrators’ Partnership Reprographics Coalition (AIP). Their combined members include more than 4,500 of the most prolific and widely published cartoonists and illustrators in the world. Their pictures illustrate a wide spectrum of general and special-interest publications. The majority are independent contractors who have reserved reproduction rights on a substantial body of their published work. All of the associations in the Coalition admit members who are working illustrators that pass portfolio reviews to professional standards. The AIP Coalition seeks to establish the proper claim on illustrators’ reprographic royalties and to establish a relationship that will result in a collecting society to represent the collective rights of the American illustration repertoire of published works.

On October 31, 2006, at the annual meeting of the International Federation of Reprographic Rights Organizations, the AIP made a statement before the General Assembly, which said in part:

“Our organizations have not transferred our members’ mandate to collect print or digital reprographic rights to any other U.S. organization, nor have the majority of our individual members knowingly or willingly given any U.S. organization such a mandate.

“The great body of American illustrators wishes to participate in the sharing of reciprocal rights agreements in the international reproduction rights community. Until now most American artists were even unaware that reprographic royalties are being collected and distributed throughout the world.

“The Board of Governors of each organization supporting the Illustrators’ Partnership affirms their intent to unite to constitute the relevant rights-holder class of the collective rights of the American illustration repertoire of published works. In this regard we have expressed our willingness to work with the Copyright Clearance Center.”

The statement was presented by artist Brad Holland, speaking on behalf of:

• Illustrators’ Partnership of America (IPA),
• Association of Medical Illustrators (AMI),
• Society of Illustrators New York (SI),
• American Society of Architectural Illustrators (ASAI),
• National Cartoonists Society (NCS),
• Guild of Natural Science Illustrators (GNSI),
• San Francisco Society of Illustrators (SFSI),
• Pittsburgh Society of Illustrators (PSI),
• American Society of Aviation Artists (ASAA),
• Society of Illustrators, Los Angeles (SILA),
• Society of Illustrators of San Diego (SISD)
• Illustrators Club of Washington DC, Maryland and Virginia (IC).

Learn more

To read more about visual artists’ reprographic rights please see the short, informative articles here, and choose “Reprographics.” Any of these articles may be posted or republished in their entirety to any interested party, provided attribution is given to Illustrators’ Partnership.

To read the entire statement presented to IFRRO please download: AIP Coalition White Paper.pdf

For detailed reprographic rights information please download the comprehensive article about the state of illustrators’ rights, First Things about Secondary Rights, by Brad Holland; Columbia Journal of Law & The Arts, Volume 29, No. 3, Spring 2006

Notes on a Visual Authors Collecting Society

Notes on a Visual Authors Collecting Society
By Cynthia Turner

European collecting societies tend to be more pro author rights (sometimes called natural rights) than the U.S. This is rooted in the common law of England that gave farmers perpetual rights in their real property on the theory that they mixed their labor with the soil. Later, this concept was extended to authors, who are bestowed natural rights because their labor is mixed forever in the texts, artwork and music that embodies their ideas.

Unlike the copyright law in the United States, copyright law in Britain and the countries of the former British Empire rests on this natural rights philosophy. They do not question that an author’s work is his property, nor that the author is morally entitled to control the product of his labors. They do not find it ethical to deprive authors of the reward for their labors, or allow others “to reap where they have not sown.”

Overseas collecting societies are each governed by the statutory license of their respective nations. Before a recipient can receive fees for reprographic usage, the recipient must agree to distribute and apply the funds in the same manner as the collecting country. If the collecting society is not satisfied that there is a proper to entity to distribute to, they are under no obligation to distribute these funds. In fact, they are under no obligation to collect any royalties for American illustrators at all. They do so because they believe it is right and proper, even if the U.S. has not yet created a proper system to receive these funds.

We understand that these collecting societies collect royalties for visual artists, including U.S. artists:
VG Bild-Kunst (Germany)
BUS (Sweden)
Copy-DAN (Denmark)
Kopiosto (Finland)
Kopinor (Norway)
Reprobel (Belgium)
CFC (France)
Cedro (Spain)
VEGAP (Spain)
Stichting Reprorecht (Netherlands)
ACLS (Britain)

Each collecting society collects for what they refer to as different “genres”. This can vary widely from country to country. For example, Pro Litteras in Sweden collects for a wide array of their national Swedish rightsholders: Authors of screenplays, Playwrights, Poets, Writers, Journalists, Authors of fine art and design, Photographers, Architects, Lyricists, Stage Directors, Choreographers, Book publishers, Newspaper publishers, Journal/periodical/magazine publisher.

They collect for these genres of work: Architectural work, Audio-visual work, Dramatico-musical work, Dramatic work, Literary work fiction, non-fiction, Photographical work, Work of art.

When European collecting societies collect for American rightsholders, they have separate collections for different genres. Sometimes, for example, a collecting society may remit the text authors’ genre to the U.S., but hold the illustration genre in escrow because they are not satisfied that adequate illustration representation exists in America.

For U.S. illustrators the challenge is the same. Whether with overseas collecting societies, or the U.S. Copyright Clearance Center, we must come together as rightsholders to collectively assert our rights in a collecting society. This means we must accomplish the following:

We must demonstrate that we own the rights to our work.

We must implement a system to track those rights

We must establish an administration to receive artists’ royalties and distribute those royalties according to the distributing society when received from overseas, and according to the will of the rightsholders, when collected domestically.

We must work toward reciprocating agreements with our overseas counterparts to clear and return royalties to their works reprographically reproduced in the U.S.

This requires several steps, which include:

1. A chain of of rights assigning the collecting right to a U.S. collecting society for published American illustrators, regardless of any professional organization affiliation.

2. We need to raise the seed money to create a collective rights administration, implement a rights management system and hire a staff. International protocols for this are well-established.

3. American illustrators need to display the collective will necessary to create a collecting society.

llustrators’ Partnership of America has received encouragement and advice from various sources throughout the world. Here are some of the things that we have learned:

• There may be as much as 12 years of escrowed funds at [a collecting society] numbering in the neighborhood of $1.2 million dollars. This amount is apparently for several genres, not just visual art.

• The universe of money for reprographic royalties is getting ready to blossom due to burgeoning online digital republication licensing.

• The IPA needs to explain to illustrators that the US, in having a system focused on copyright owners, instead of copyright owners and creators, is not fulfilling its international obligations to international artists, in terms of providing a reciprocal relationship. In other words, the US wants to take money from foreign countries for visual arts usage, but the US does not reciprocate by collecting and returning visual arts royalties abroad. It’s in everybody’s interests that this changes in the US, and foreign countries would work with an agency if someone would provide the leadership here.

• The European societies like “transparency.” They are open and above board with their citizens about where this money goes.

• Europe is frustrated that U.S. creators/authors are not more militant. The Europeans believe that the future and protection of U.S. creators establishes the future and protection of European authors as well.

Setting up a Collecting Society

Setting Up A Collecting Society
Simon Stern
Association of Illustrators /
Design & Artists Copyright Society, UK

To: Brad Holland
Date: Fri, Oct 15, 2004, 12:24 PM via e-mail

Dear Brad
I got a message from Stuart Briers of the Association of Illustrators that IPA were interested in collecting photocopying money on behalf of illustrators in the USA, and wanted to know how to set up a collecting society, so here is a brief résumé.

ABOUT DACS [Design & Artists Copyright Society]
As you know DACS is the organisation that does this in the UK. It was started as a licensing service for (mainly) fine artists and their estates, part of a network of such societies throughout the world. Thus it represents not only its own UK artist members, but also the members of the other societies in the network (eg Matisse, Picasso, Calder etc) when their works are reproduced in the UK. This is its primary rights function, and in this role it acts more or less in the same way as an illustrator’s agent would, licensing reproduction for books, magazines, advertising, merchandising etc.

The secondary rights function is its ‘collecting society’ function in that it deals with rights that individual creators could not license themselves—chiefly photocopying, but also cable re-transmission of TV and slide collections. This secondary rights function started when the Association of Illustrators and the Association of Photographers approached DACS and asked it to represent their members for secondary rights - (we knew there was money out there waiting to be collected). DACS then approached a number of other organisations representing the visual community in fine art, photography, journalism, design etc who were willing to enroll their membership with DACS for secondary rights representation. Once this was done DACS could claim to represent a very substantial number of visual creators across the whole spectrum, and it was in business.

How Collecting Societies Work

Collecting societies sell ‘blanket licences’ which allow organisations to photocopy stuff legally. In return, the collecting society offers to indemnify its customer organisations against any claims that the photocopying is a breach of copyright. As part of the deal the collecting society will negotiate some form of sampling of what is copied, on the basis of which it then distributes the proceeds (less commission) to its rightsholders (publishers and/or creators).

In the case of DACS the issuing of blanket licences and gathering of sample data is carried out by a third organisation, the Copyright Licensing Agency (CLA). DACS then distributes the money to its creator members. The CLA is jointly owned by ALCS (the authors’ collecting society) and PLS (the publishers’ collecting society), and at first DACS had a struggle to get a look in. Thanks largely to the fall-out from a Copyright Tribunal judgment, it now has a negotiated share of the total take (8.5%) which goes to visual creators, and even a seat on the CLA board. DACS’ share currently amounts to nearly £3m per year.

The Situation in the USA

DACS’ primary rights function is carried out in the US by 2 organisations, ARS and VAGA. As I understand it they are ‘for profit’ organisations whose basic business is running fine art image banks, and unlike DACS would be probably not be interested in starting a secondary rights operation, though there would be no harm in talking to them. (DACS is a ‘not for profit’ organisation with a substantial input from creators in its governance).

The secondary rights function in the USA is carried out by CCC [Copyright Clearance Center]. Unlike CLA, which is jointly owned and run by creators and publishers, CCC is entirely a publisher owned operation, and the money goes to publishers. Whether they pass a share on to their authors, I don’t know.

There is another big difference between the two countries—the ‘permitted acts’. In the UK copying for educational purposes is not a ‘permitted act’, but in the USA it is. This means that whereas CLA collects a lot of money from schools & universities, CCC has only the business (& presumably government) sectors to target. Nevertheless I am told that CCC currently collects about £80m per year [over $100 m]. CCC is a member of the collecting societies’ international organisation IFRRO, and is in a somewhat anomalous position, I understand, because of its ‘publisher only’ status. There is also a trend within IFRRO to acknowledge the significance of the visual repertoire when licensing photocopying. The CCC therefore may be open to persuasion on this point.

How To Set Up A Collecting Society

The first thing to do is to get as many visual creators from all disciplines to join as you can. The best way of doing this is probably through associations rather than individuals. You need mass membership across the full spectrum of visual creators to give you recognition and clout. DACS was in the fortunate position of being able to use funds from cable retransmission of TV programmes quite soon after it had got enough creators together to claim to be representative, and these funds were swallowed up initially in setting up the structure of the secondary rights operation (to put it bluntly, DACS charged a commission of 100%, which is the way almost all collecting societies have funded their start-ups). I don’t know if there is an equivalent source of funding in the USA that you could tap. You will also probably need to find some funding from somewhere to employ at least one person initially to get the whole thing together.

It might also be worth talking to writers’ and journalists’ associations to see what their take on the CCC situation is.

I hope this is some help. We at DACS would be happy to give what support we can.

Simon Stern
Association of Illustrators/DACS/CLA

Role of Reproduction Rights Organizations

Role of Reproduction Rights Organizations
by Stephanie Faulkner, Acting Secretary General, IFRRO

Invited Guest Writer, Exclusive to Illustrators’ Partnership of America

Some years ago, it was estimated that approximately 300 billion photocopies of copyright material were made annually worldwide. The vast majority of these copies were thought to be made illegally in that the consent of the relevant copyright owners or their collecting society was not obtained and no excuse was afforded by legal presumptions and exceptions such as "fair use".

This estimate of numbers of copies made annually has undoubtedly been put in the shade over more recent times as a result of technical improvements in the speed and quality of photocopying machines and by the number of copies now made using other means of copying, such as by scanners, printers, writable CD-ROMs and other digital mediums for storing data. The soaring use of paper worldwide is closely related to the quality and ease with which large scale copying can now be done.

It is harmful to any society, however, to turn a blind eye to the unlawful (and unremunerated) copying of copyright literary and artistic works. Such copying diminishes the financial incentives that would encourage further literary and artistic endeavor by those persons most capable of producing works of importance. This is because unlawful copying more particularly occurs in relation to educational, scientific and non-fictional works. The failure to protect literary and artistic works from unlawful copying is ultimately illogical and self-destructive to the fabric of any society genuinely interested in promoting the economic and social welfare of its people.

Reprographic Rights Organizations

Reprographic rights organizations (RROs) have been established in the United States of America, virtually all European countries and elsewhere throughout the world over the last 20 years or more to ensure that economic incentives for the usage of copyright works are enjoyed by those whom the international conventions on copyright intend to benefit: individual creators of literary and artistic works and their publishers. RROs facilitate ease of access by users by providing a simple means for users to obtain permission to use copyright works. RROs in the IFRRO community are owned and controlled by authors and publishers and have been set up to manage photocopying rights to ensure that an administratively simple and affordable means exists to administer the reprographic rights in printed material.

Collective administration by RROs makes economic and practical sense when mass methods of reproduction and communication are used widely by users domestically and abroad. In such circumstances, individual administration is often impossible, inefficient or impractical. Collective administration is most useful when there is a need to reproduce small portions of works for internal use for multiple rightsholders using standardized licensing and distribution policies and procedures. In these circumstances, RROs enable transaction costs to be reduced to a manageable level. They reduce the need for individual rightsholders to enter into multiple negotiations for licenses with users domestically and in foreign territories in which RROs are also established and also reduce the need for the monitoring of compliance with license terms and infringements of copyright. The public interest is also served by RROs, who ensure that educational and scientific material is made readily available for educational and research purposes at a reasonable price. In performing these functions, RROs ensure that the wider social and cultural benefits of copyright are realized for the general public good.

RROs generally administer photocopying rights, however, many RROs are now also moving to administer digital rights at the request of rightsholders and users because of the advantages that collective administration affords. Photocopying licenses must provide users with reasonable access to works but must not substitute for entire works of published copyright material in books and periodical form. This is because scholarly publishing continues to be the "engine" of the print publishing industry, frequently accounting for between 28% and 37% of all production of books in major markets for the sale of books. A blanket license granted by an RRO would typically allow photocopying for internal, non-commercial use only of a portion of a publication (e.g., 15 % or a maximum of 25 pages from a book still on sale). Electronic usages of copyright material, however, can relate to the usage of entire works in certain circumstances (such as on an office intranet).

The key to success of any RRO is that it should have a comprehensive repertoire and that it should have the confidence of rightsholders and users. Greater emphasis is being placed in recent times on the need for collecting societies to operate efficiently and transparently, particularly with respect to rightsholders. IFRRO and its members are working on developing a Code of Best Practice to ensure that RROs operate to the highest standards and in accordance with the "world’s best practice".

November 2001

More About Reprographic Rights Organizations

More About Reprographic Rights Organizations
By Tarja Koskinen-Olsson and Paul Greenwood The International Federation of Reproduction Rights Organizations (IFRRO)

What are RROs?
“RROs began in response to the need to license wide-scale photocopy access to the world's scientific and cultural printed works. Originally called “collecting societies,” RROs license reproduction of copyright-protected material whenever it is impractical for rightsholders to act individually. RROs derive their authority from national legislation and/or from contracts with rightsholders. Each year, national RROs license hundreds of thousands of users to copy from millions of titles published throughout the world.”
(III.1)

What is the mission of IFRRO?
1986 meeting in Heidelberg adopted the following declaration emphasizing
IFRRO’s dedication to the establishment of RRO’s in countries where none exist:

“We hereby declare our intent to encourage any joint attempt by authors and publishers to establish national collecting societies in the field of reprography. We are ready to offer co-operation to the establishment in a positive spirit.” (III.3)

How Do You Finance an RRO?
Although, generally speaking, RROs are non-profitmaking organizations, they are businesses nonetheless and the successful ones are run in a very business-like manner.

“In order to get off the ground, an RRO needs start-up capital just like any other business. Every existing RRO has borrowed seed-corn money and/or necessary manpower from the people who will eventually benefit most from its creation i.e. the authors and publishers themselves.” (IV.2)

What is the Legal Basis for the Collective Administration of Reprographic Rights?
“Collective administration should be based on voluntary licensing whenever possible. The owners of the exclusive rights should be able to decide whether, in what circumstances, and on what terms the use of their works will be authorised. When it is impossible or impracticable for them to exercise their exclusive rights individually, they can do so collectively.” (I.3)

What Are Voluntary & Non-Voluntary Licensing Systems?
Since the right of reproduction is an exclusive right, it is natural to establish collective administration of reprographic reproduction rights on a voluntary basis. In voluntary licensing systems the collective administration organization issues licences on behalf of the rightholders, collects remuneration and distributes it to rightholders.

Non-voluntary licensing systems can be stipulated in national legislation whenever this is permitted by the international conventions. In non-voluntary licensing systems the consent of rightholders is not required, but they have a right to remuneration. Collective administration is required to collect and distribute this remuneration.

A collective administration organization can only administer the rights of its members, i.e. the rights of those who have given the organization a mandate to act on their behalf. (II.2)

How Are Reprographic Fees Distributed?
One of the basic principles of collective administration is that remuneration should be distributed individually to rightsholders according to the actual use of their works. This general principle also applies to remuneration for reprographic reproduction.

The following methods of distribution are used:
— individual distribution on the basis of full reporting
— individual distribution on the basis of sampling
— individual distribution on the basis of objective availability
— distribution for the collective purposes of rightholders

FULL REPORTING means that users record details of every copyright work that is copied. The advantage of full reporting is that the collected data provides an accurate basis for the distribution of revenue to rightholders. Many licensing programs in the United States are based on full reporting.

SAMPLING is a technique that is often used in the schools sector. A defined number of users report their actual use at agreed intervals. In Denmark, for instance, 5% of all schools regularly report their copying to the local RRO.

Since all material existing on the market can be copied, in some countries the assumption is made that at some stage it probably will be copied. The principle of OBJECTIVE AVAILABILITY, i.e. “availability on the market” can therefore form a basis for individual distribution, as is the practice in Germany. Authors and publishers report their publications to the local RRO and receive their share of the distribution accordingly.

“In Norway, Finland and Sweden, fees are distributed for the COLLECTIVE PURPOSES of rightsholders. This is the solution which rightsholders themselves have chosen. It applies only to the rightsholders represented by the organization in the country. According to the extended collective licence in the Nordic countries, non-represented Rightsholders always have a legal right to individual remuneration on an individual basis.” (II.7)

What is the Future of Reprographic Usage?
National RROs have made enormous strides in providing effective photocopy access to users along with equitable remuneration for rightsholders. IFRRO's informational and educational programs have increased awareness and respect for copyright by governments, users and rightsholders throughout the world. Nevertheless, illegal copying is still widely practiced in many countries. The emergence of newer technologies further intensifies the importance of organised and timely responses to the needs of both users and rightsholders. For this reason, IFRRO's mission and the growth and solidarity of its members continue to be vital. (RROs, IFRRO, and the Future)

© IFRRO 1997 Edited by Tarja Koskinen-Olsson/Paul Greenwood http://www.ifrro.org
Reprinted with Permission

Toward a Copyright Bank: Tracking How Art is Used

Toward a Copyright Bank: Tracking How Art is Used
Brad Holland

Because the U.S. currently has no means of tracking the individual usage of art, the essential goal of an American licensing and collecting society for illustrators should be to institute the means necessary to track usage.

This technology is already available. At the IPA, we've researched it and we believe it could be implemented if we can find and focus the necessary resources. Properly employed, this technology would make it possible to track not only reprographic usage, but all forms of usage. This would aid in detecting piracy and infringement. Moreover, if artists chose to pool their copyrights in a Copyright Bank (as songwriters have done with ASCAP for 90 years), it would allow individual illustrators to keep working as they do now, but with the means to protect their rights collectively.

Rights-management can be achieved by digitally embedding a persistent identity tag linked to an artists' registry in every work of art delivered to a client. This would identify the authorship of each work, and regardless of the artist's and the artwork's changing locations, it would maintain a link between the two through the Copyright Bank.

New technology for managing extensible data will allow contractual information about the work and a history of the image's usage to stay with the image and "travel" with it, reporting any new usage back to the artists' registry.

This registry would make it possible for potential users to know what rights the artist has made available for licensing and which he or she has reserved. Users can then license available rights at the artist's discretion, according to the artist's terms. The Copyright Bank would remit fees back to the artists.

Publishers are already embedding Digital Object Identifiers (DOIs) in the work they distribute (over 10 million already in place). By tagging each article, illustration, photograph, map or chart within a collective work (the issue of a publication, for example), they're preparing for a future in which they can not only license the published compilation as a whole, but also the separate elements of the collective work. What does this mean?

It means that a publisher will be able to license your work to third parties for new usage without your knowledge and with no additional payment. And this accounts for the increasing demands we've been seeing for all-rights contracts (it saves the publisher administrative time to know that they have a legal right to every component of the collective work).

This is where the future of our business is heading and it has been happening under our noses with only minimal awareness on our part.

Unless we act to protect our work, publishers will continue to build the technological infrastructure they need to accumulate rights through all-rights demands, retroactive contracts, lobbying efforts to revise Section 201-C of the Copyright Act, infringement or by simply licensing the copyrighted work of artists without acknowledgement, as the Copyright Clearance Center (CCC) is already doing. (Since its inception in 1976, no visual creators or their organizations have succeeded in getting the CCC to acknowledge the authorship of American illustrators.)

At the IPA, we've had several fruitful discussions with a company that can supply the necessary technology to the illustration community for a reasonable price. The question is whether we can locate the seed money, create the infrastructure to make it effective and negotiate a business arrangement with publishers that would make this step beneficial to publishers and artists alike.

We need to emphasize one last point: Participation in a Copyright Bank would be voluntary. All artists — if they chose to do so — could continue to sell their copyrights to clients, sign all-rights agreements or waive their reprographic rights. A Copyright Bank would not compel universal compliance. It would simply be an option which artists don't have currently for protecting their work.

To the contrary, it's the current system which risks compelling universal surrender of rights to publishers, because the current system gives publishers the power to enforce all-rights agreements by threatening to withhold assignments from those who don't give up their rights.

Brad Holland
Illustrators News, June 2003