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)
Stichting Reprorecht (Netherlands)
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.