Workshop/Webcast: Library of Congress Authors, Attribution, and Integrity: Examining Moral Rights in the United States April 18, 2016
ANTONIN SCALIA LAW SCHOOL GEORGE MASON UNIVERSITY JOURNAL OF INTERNATIONAL COMMERCIAL LAW
AUTHORS, ATTRIBUTION, AND INTEGRITY: EXAMINING MORAL RIGHTS IN THE UNITED STATES SYMPOSIUM TRANSCRIPT
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Library of Congress Text-based Transcripts on-line (and their continued existence depends on the links, search, cross-references, server, controls, and human/government/leadership advocacy):
>> Good morning everybody. Good morning copyright experts and authors.
My name is Maria Pallante. I'm the United States Register of Copyrights. It's a great privilege and pleasure to welcome you here today to hear about authors' attribution and integrity.
My staff and I have been looking forward to these discussions for a long time. Moral rights are something that we haven't talked a lot about in the United States in recent years. And so today, this symposium marks the beginning of a very important conversation that will eventually extend to a formal public process.
I want to extend a very warm welcome to all of our panelists who are here today, including those of you who have come from other cities to be part of this conversation. I'm very pleased that we'll be hearing from a wide range of perspectives. Legal, scholars, industry representatives, and perhaps most importantly authors, composers and artists.
I want to thank my staff for the very hard work that went into pulling this together in the Office of Policy and International Affairs, headed by my colleague Associate Register, Karyn Temple Claggett. And I also want to thank Sandra Aistars, who's sitting here to my left. And all of her colleagues at George Mason University Law School in the Center for the Protection of Intellectual Property. Not only for collaborating on this particular symposium today but for being one of our very important academic partners. This is the, I think, third academic partnership we have along with Stanford University School and George Washington University Law School. And it means everything to us to be able to collaborate in academia.
As Register, I have advised Congress to undertake a comprehensive review of our copyright law. That started in 2013. And I have noted in testimony that unfortunately the rights of individual authors have been lost in the conversation while they should really be the focus.
Members of the House Judiciary Committee and the witnesses who testified before the Committee also identified moral rights issues. Including attribution and the ability of creators to reuse, excuse me, refuse certain uses of their works, as some of the most important aspects of a well-functioning copyright system. The United States is, of course, obligated to recognize authors' moral rights under several existing treaties. Some, however, have begun to question the strength of moral rights protection in the United States, in light of recent and perhaps not so recent case law.
So today, we will explore a number of questions. We'll take a look at the current state of moral rights protection in the United States, and we'll compare our framework with that of other countries. We'll take a deeper look at attribution rights and how they are covered under US law. And we'll consider whether the law could be amended to better protect authorship attribution.
Authors, composers and artists will share how they value and protect moral rights. Issues related to how licensing arrangements and contracts are used to supplement statutory rights will also be raised. And of course, we'll be looking forward to hearing everybody's thoughts in the discussion aspects of today's symposium.
Today marks only the beginning of our conversation. After we reflect on what we hear today, the Copyright Office will issue a notice of inquiry, beginning a more formal process, including written public comments. Although at this time I don't know and won't prejudge the ultimate outcome of these inquiries to come, I can assure you that, as with all of our work, the process will be very public and very transparent.
Finally, moral rights have been addressed by previous Registers of Copyrights. And I am very pleased to recognize my two previous predecessors, the Honorable Marybeth Peters and the Honorable Ralph Oman, both of whom are here today. So thank you very much for coming and I'd like to turn it over to Sandra Aistars.
Good morning everyone. I'm Sandra Aistars. I'm a clinical professor at George Mason University School of Law. And I work with my colleagues at the Center for Protection of Intellectual Property on copyright issues on a day-in-day-out basis. But I'm also the daughter and the granddaughter of artists and authors.
My father is a painter and a writer. My grandfather was an author and my grandmother an opera singer. Among my other relatives and friends, I can count many additional poets and painters and writers and rockers. These people have shaped my view of the world.
The relationship that a creator has with his work is profound and personal. I know by firsthand observation from my very earliest days how closely integrated with the artist's personality and identity his creation is. It's not for nothing that artists often refer to their work as their babies.
I grew up in the thick of art. My childhood was permeated by turpentine fumes and the tunes of the Metropolitan Opera Saturday afternoon broadcast, as my father painted in his studio and I chewed on the railing of my playpen. I have later fond memories of participating in naming parties for my father's paintings.
He was much influenced by the abstract expressionists, so this was one opportunity to let my creative juices flow, with little to stand in the way of my genius. I was never one for names like Untitled or Abstract Number Five. Instead, I preferred to name his paintings, among other things, Green Pizza. And I don't know if my acumen in naming work combined with my father's good sense of humor gave that particular painting a boost, but I can vouch for the fact that it won awards and sold immediately.
But I also remember vividly the bonfires that my father would hold to get rid of paintings that he did not feel proud of. These extremes of christenings and cremations of works are part of my DNA. But I think they're also understandable to any of you, even those who don't make their livelihood in a creative world and those who have not grown up with same sorts of influences that I have.
These experiences bring into laser focus the emotional impact creative works have on our lives. Whether we're the creators or the beneficiaries of those works. You would think that all of these influences throughout my life would lead to my having formed very concrete views on moral rights issues, but that's not the case.
And perhaps that's because the idea of moral rights has been so foreign to us in the United States. In preparing for this presentation, I dug into the academic literature on this topic. And I want to quote to you the introduction of an article by Susan Liemer, which aptly illustrates the state of our current understanding of moral rights in the US.
She writes, "In 1997, a sculptor named Jan Martin won a lawsuit against the city of Indianapolis, using a little known federal statute called the Visual Artists Rights Act. The court found the city violated certain rights that the statute granted to Mr Martin when bulldozers destroyed his sculpture in the name of urban development. During the damages phase of the lawsuit, the court refused to award to Mr Martin the enhanced damages available under the statute because, after all, the city had been unaware of the statute.
The Seventh Circuit had no problem affirming the District Court. How is it possible that ignorance of the law was a valid excuse?" So, so much for the principle that we learned in civics class, long before some of us went to law school to learn it again. That ignorance of the law is no excuse.
This is one of the reasons why I'm honored to be partnering with the US Copyright Office in organizing this symposium. In order to take what might be the first strides towards a deeper understanding of how we value and how we implement moral rights protections for artists in the US. I'm eager to hear the varied perspectives of the speakers and to learn from the diverse sets of experiences across industries and internationally. Whether there are issues that would benefit from further inquiry.
My initial perspective is that discussions about moral rights encompass many of the most compelling issues that arise concerning creativity in the digital world. Indeed, some scholars have commented that moral rights are really an avatar for discussing basic copyright tenants. But I'm particularly intrigued by these discussions because by examining copyright from a moral rights, rather than a purely economic perspective, I believe we move towards a fuller understanding of the creator's relationship with his work.
Before we begin today's proceedings I'd also like to take the opportunity to thank numerous people at George Mason Law School who've contributed to making this event possible. My colleagues at the Center for Protection of Intellectual Property who provided economic, intellectual and moral support for this endeavor. In particular, thanks to Devlin Hartline, Kristina Pietro and Matt Barblan, my students in the Arts and Entertainment Advocacy Clinic, who helped prepare the moderators for these discussions.
And the members of the Journal of International Commercial Law who will publish these proceedings. Particular thanks there go to Gabrielle Peters, the current outreach and symposium editor of the journal, and Tyler Del Rosario, the incoming outreach and symposium editor. To Taylor Hoverman, the current editor and chief, and Tanya Secor, the incoming editor and chief. And to Stephen Veit, the incoming managing and publications editor. ^M00:10:10
I encourage all of you to take a moment today during the breaks to stop by, familiarize yourselves with the journal and with the students, and to consider submitting an article for publication in the future. Thank you for being here. And thank you for contributing your thoughts and experiences.
[ Applause ]
>> And so with that I'd like to invite Karyn Temple Claggett up to moderate the first panel. And if the first panel could please come up.
>> Our first panel today is entitled Overview of Moral Rights. And I think some might question us in the United States Copyright Office and CPIP focusing a whole day on moral rights and even questioning whether we actually have enough to talk about for a whole day with respect to moral rights in the United States. Because of that we wanted to start with an overview of moral rights so that everyone can have a kind of a basic understanding of what moral rights are.
How different countries have implemented throughout the world. And exactly how the United States has implemented them, as well. I'm not going to go through everyone's bio in much detail. You guys have that in your conference materials, but I'll just briefly mention everyone in terms of their title and where they come from.
First, I have June Besek who is the executive director of the Kernochan Center for Law, Media and the Arts and a lecturer at Columbia Law School in New York, where her research and teaching focuses on copyright and related rights. Next, I have Daniel Gervais. He is a professor of law at Vanderbilt University Law School and director of the Vanderbilt Intellectual Property Program. He is also editor in chief of the Journal of the World Intellectual Property and editor of www.tripsagreement.net.
Next, I have Mark Schultz. He is the director of academic programs and cofounder of the Center for the Protection of Intellectual Property at George Mason University School of Law. He also serves as an associate professor of law at Southern Illinois University.
And finally, last but not least, I have an alum of the copyright office, Eric Schwartz, who is a partner at Mitchell Silberberg & Knupp. He has over 25 years of experience as a copyright attorney, providing counseling on US and foreign copyright laws. Including rights, ownership and enforcement issues.
So we clearly have a very excellent panel today. To kind of give you a basic background of moral rights before we go into more detail about how they are actually considered in the United States. And what we might need to do to amend or strengthen them here.
I'm going to start off first with June. And I know, June, you have some slides, so I'll put those up real quick. Hopefully. All right. So the first question we have for you is just a general basic one. What are moral rights? And can you briefly describe them?
>> All right. I just have to say that I love the question about whether we have enough to talk about all day. I mean we're lawyers [laughter]. You know we can talk about -- in this case we even something to say all day.
But any case, moral rights are rights that an author has in her work that are separate and apart from economic rights. They're accorded to the author because her work is seen as a manifestation of her personality and expression of her inner self. Her baby, as I think the term was that Sandra used.
The term comes from the French term droit moral, but that term doesn't really translate very well. Because the word moral has a different connotation in English. And some have suggested calling them instead personality rights or spiritual rights.
Moral rights belong to the author, the creator of the work, and not to a licensee or to an employer. They can't be transferred to somebody else, although in some cases, they can be waived. The most commonly recognized moral rights in the world are the right of attribution, also known as the right of paternity. But you can see why I prefer not to use that term. But this is the author's right to have her name associated with the work she creates. In other words, the right to claim authorship.
The second right is the right of integrity. The author's right to prevent unauthorized changes that would result in distortions, mutilations, or other modifications of the work. And then the third is the right of disclosure, right of divulgation, also termed. And this is an author's right to determine whether and under what circumstances the work will be introduced to the public.
For those of you familiar with Harper & Row against the Nation that, that language is reminiscent of how the Supreme Court describes the right of first publication in the United States. And then finally there's the right of withdrawal. Some countries like France provide authors with the right to withdraw their works from the public, if they feel the works no longer represent their deepest convictions, their deepest beliefs. In essence, this right allows an author to retract economic rights that she's licensed to third parties.
However, it's rarely recognized for a couple of reasons. One is that it really has to be based on a deep-seated conviction, which is probably actually related to the other reason. Which is the author has to bear the costs, and it can be very expensive to do this. So it's a rarely exercised right.
Now I just want to mention that the top two rights are the ones most commonly recognized around the world. And the other two certainly exist but they're not as prevalent. At least not in those precise terms.
[ Inaudible Response ]
>> So the next question I guess is you talked generally about moral rights and what they are. Can you give a little bit of background, in terms of how did the concept develop historically? What is the foundation or basis for moral rights? Why do people think that those were important to have separate and apart from economic rights?
>> I think a lot of us think of moral rights as kind of like an established body of law. But like many things, they really developed piecemeal, primarily in Europe until they were codified in the early 20th century. There were two principal theories on which moral rights were based.
The first is called the monist theory. And it braces the view that authors' works are an embodiment of their inner selves inextricably interwoven with other rights. And not all of the rights of an author are commercial objects. Under this theory, economic rights are really a subset of moral rights, but as I said, they're deeply intertwined.
And then there's something called the dualist theory, and both of these are from different philosophical lines of thought. But under the dualist theory, an author's personal and economic interests are separate and distinct, and can be protected by different bodies of law. So you can modify a creative work and you can sell it or transfer it, but the personality rights remain with the author.
Now because countries took different legal approaches to moral rights, some embodied them in the copyright law but others embodied them in separate parts of their laws. But by the early '20s, there was sufficient similarity between laws that countries began to urge that these become part of the Berne Convention. Which, as you probably know, is the principal international copyright treaty and provides for minimum rights and national treatment. And essentially what people wanted was for moral rights to become one of these minimum rights that had to be included.
And I'm not going to talk a lot about Berne. But I just want to mention that, in order to have moral rights be part of Berne, the countries had to make compromises. So the ones with the strongest body of moral rights essentially agreed that it would be sufficient, if these rights were not in a specific body of law, whether copyright or another.
They didn't have to be codified, but they could be in other places in countries' laws. And this was done so that countries like the UK, Australia, could join without it having to amend their laws, if they believed that they had sufficient rights. And this will come up later when we talk about how the US joined.
So the moral rights are now embodied in Article 6bis of the Berne Convention. And I'll leave it up there, but I know that we'll talk about that more. There are other provisions. This is just 6bis one.
Just a couple more things I want to mention. How long moral rights last? Well they last at least as long as the economic rights, but some countries have moral rights that are essentially perpetual. And I guess that leads me to the next point, which I know Daniel's going to discuss, which is Berne members vary as to the scope and duration of moral rights. And some of the finer points we'll talk about later.
I think the last thing I want to mention, if you could just advance that slide. I want to talk about one more right, which isn't really a moral right, but it's reminiscent of a moral right. It's an economic right, but it's considered an author-friendly right. And it's something that can't be waived.
It provides that an author has the right to share in the proceeds from the sale of her work, even after the first sale. And this is -- oh, one more. Sorry. This is embodied in Article 14ter of the Berne Convention. And we call it, in this country, resale royalties. And the Copyright Office recently had a report on resale royalties recommending that they be embodied in US law.
One last point. Which is that this is a little different from other Berne rights because it is not mandatory. But it is a right that countries can grant to other nationals, based on whether those nationals' country allows for this right. ^M00:20:00 So with that, I think I'll end and turn it over and move to the next question.
>> Yes. And I think we'll jump around a little bit. I'll turn it next to Mark. Just to ask the question about kind of contrasting the difference between moral rights, as we've discussed, and economic rights, which is what we're more familiar here with in the United States.
>> Certainly. Thanks. So moral rights are a somewhat uncomfortable fit within our system of intellectual property rights. So I emphasize uncomfortable but not impossible. That's because moral rights have evolved from a largely different moral and philosophical ground than traditional American copyright.
According to legal historian James Willard Hurst, in matters of property, the US has preferred dynamic rather than static property, property in motion or at risk rather than property secure and at rest. This preference reflected the values of a country that seeks change and growth over status and security. And so this preference for property in motion over property at rest was reflected in numerous departures from European property institutions.
We abolished primogeniture and entail. We disestablished churches. We forbade titles of nobility. And we certainly never viewed people's status as tied to the land like Europeans once did in medieval times.
Americans were concerned with protecting private property, chiefly for what it could do rather than an identity it conferred or how it was tied to an identity. And so Americans were largely concerned with protecting people's method of making a living and their investments rather than their status or holdings. Now this focus on property, for what it can do, has led many to contend that the founders had a utilitarian view of intellectual property, and this contention's actually an anachronism.
While the founders were likely mostly aware of Jeremy Bentham and utilitarianism, as it was emerging at the time, they weren't utilitarians. The founders' views on property, including intellectual property, were instead fostered in a natural rights philosophy. The utilitarian justification for IP is a 20th century development, albeit, a very early 20th century development.
And so the natural rights view sees life, liberty and property as inextricably intertwined. And a natural rights foundation justifies copyright because it enables creators to flourish, to survive and thrive, conditioned on the need of others to survive and thrive. And so this focus has led to a focus on copyright, as a property right, that facilitates the ability to make a living and to fully exploit and commercialize creations.
Thus, copyright embodies Hurst's description of Americans' preference for property in motion rather than at rest. And reproduction right, the derivative works right, the distribution right, and public performance rights enable creators to secure an economic return. And one way in which they secure a return is being able to freely alienate their works to others who similarly employ them to survive and thrive.
So, in our system, we prefer property rights unencumbered. Unencumbered from the ability to easily alienate them because we are focused on this ability to make a living. And anything that encumbers property rights reduces their value and reduces the ability to fully exploit them.
And the utilitarian view similarly focuses on property in motion. Social utility is maximized when the production, dissemination and use of works is efficiently facilitated by copyright. Once again, property in motion.
Now under either the natural rights or utilitarian view thus, moral rights are a somewhat uncomfortable fit. They appear to represent property at rest rather than property in motion. Property based on status rather than fostering either flourishing or efficiency.
Still these moral foundations, either natural rights or utilitarianism can justify. They don't necessarily dictate that moral rights can't be part of our system of copyright. You can make a flourishing-based argument for moral rights, particularly I think with respect to attribution.
It certainly enables creators to make a living. And it certainly likely helps them develop a reputation that allows them to flourish and encourages them to fully exploit their works. And if you're maximizing social utility, well that's usually easy, kind of to tell a just-so story about how social utility is maximized because creators will be more likely to create with these rights in mind.
And moreover, one has to concede that we've come far from our foundations and natural rights or even early 20th century utilitarianism. By adopting the Berne Convention, we've essentially embraced a legal transplant, and that legal transplant has European roots. And thus, when we look at things like a copyright term and other aspects of our current copyright law, we certainly have departed from this natural rights base, copyright or utilitarian copyright, to embrace a copyright that does include these -- that is founded essentially on these features of European law.
So thus, I'd say that although moral rights are an uncomfortable fit within a copyright founded on natural rights and/or utilitarianism, they can be made to fit. And indeed, in our modern statute, we have several justifications for copyright. Thank you.
>> Thank you Professor Schultz. And you alluded to the fact that we have adopted some European roots, in terms of our IP system. We've kind of become part of the international discussion, in terms of having standards across the board globally. And so my next question is actually to Professor Gervais. What international standards do we have that are governing moral rights now? I think June alluded to one.
>> Yes. Well, the Berne Convention clearly is the most important. Article 6bis that was on the screen earlier has three paragraphs. The first one is the one that has the two moral rights that June identified as the most common, and perhaps the most important, attribution and integrity.
Beyond that there are -- in the Berne Convention itself, there are other moral rights. The droit de suite that June mentioned is arguably a type of moral right, but there's certainly another one in 10bis paragraph three. Sorry for the numbers here. But it's essentially of the same nature as 6bis.
So Berne is really about attribution and integrity. What has changed in the last -- so the Berne Convention was last revised on substance in 1967. And then four years later they added an appendix for developing countries.
But in 1971, the internet wasn't all that developed then, and there were other issues that have changed a little bit since then. And one of the things that has changed beyond technology and that I really want to underline is that the performers' protection level has changed. So the Berne rights are about authors only, but this morning Sandra was talking about opera and singers.
Performers have acquired internationally the same level of recognition as authors in international treaties. So Article Five of two more recent treaties -- these names are a little mouthful but the WIPO Performances and Phonograms Treaty from 1996 has a moral right for essentially music performers, which is recognized in many countries. And the US actually is part of that treaty.
And then -- I just thought I'd mention that. And then there's the Beijing Treaty on Audiovisual Performances, much more recent, 2012. Which also in Article Five has a moral right for audiovisual performers we understand that the president has sent the treaty to the Senate. So that's also relevant, I think.
So basically international. If you look at standards -- those are the ones I would identify as most important ones. You noticed that I didn't mention the TRIPS Agreement? Because it does mention moral rights but essentially to say that they're not enforceable at the WTO. I think a little later we'll hear why, from, I think, Eric or someone else.
>> Yeah. And so you mentioned that essentially right now we have three different treaties that expressly obligate member countries to recognize moral rights. The Berne Convention. The WPPT. And the Beijing Treaty. How have different countries actually implemented those rights in their national laws?
>> Well, so that's a great question because when you talk about moral rights -- and both June and Mark alluded to this -- it's a little bit like the Zika virus, right? It comes --
>> I guess you're going to explain that [laughter]?
>> Well, yes. No. But you'll see what I mean. It, you know, it comes from foreign countries. Ideally it should be entirely eradicated, but at the very least, it should be kept out of the United States. All right? So --
>> When you look around the world, though, you realize there are many ways of implementing moral rights. It's not like there's one package and you have to buy the one package and say this is the only way. ^M00:30:06 So first of all, the right of withdrawal that June rightly mentioned is very uncommon in foreign countries.
And in countries where it exists, it's very rarely used. Because as June mentioned it -- for example, you're an author. Your book is in the bookstores and you want to take it out. Well you can in France, but you'll have to compensate the publisher for all the losses. So you really have to want to get your book out of the bookstores.
So that right is really like a good croissant, right? You hear a lot about it but you never find it.
[ Laughter ]
So that leaves the other three. And so the right of attribution is implemented in several different ways. Many common law countries have implemented it. And for example, if you're obligated like law professors, for example, by rules concerning plagiarism, that in a way is a right of attribution.
Some countries have used passing off. And many countries that don't have fair use but fair dealing, have fair dealing subject to mentioning the source unless it's not reasonable in the circumstances. For example, Canada. So that right is implemented in many different ways.
The right of integrity -- here's the interesting thing. If you read the debates on 106A, which is the Visual Artist Rights Act that Sandra mentioned. There was some concern in Congress about destruction of originals of art, works of art. And that's the one right that's not in the Berne Convention.
So we're very good at protecting that one right that's not in Berne -- well, not very good, anyway. But and in fact that right was specifically discussed at the Berne Convention revision. And countries said yeah, it would be nice to have a right against the destruction of originals, but there isn't one.
So the right of integrity, though, is implemented in several different ways. So some countries just state it, and some countries define it. They'll define how. For example, the right would be in French, Canada would be and again an example that's not too far away.
And finally the right of disclosure. This right of divulgation isn't that different, frankly, from the right of first publication, which has existed in common law copyright since, what? Early 18th century, at least.
A couple of more things, if I may. So the things that differ from one country to another is waivability. Some countries have complete waivability. Countries like Germany and Austria that have the monist system, where the right is one package, the economic and moral rights are together. Obviously you can't transfer or waive the whole package, typically.
But in countries that separate, like the Berne Convention does, the economic rights and moral rights. Then you have a little more leeway as to how you do that. There's a lot of differences also, so it may be the last point to mention on enforceability after the death of the author.
So some countries -- so the Berne Convention says, if you join Berne and you don't have a moral right. You can stop at the death of the author, which was introduced for common law countries. But even if you don't and you make them last as long as the economic rights. There are conditions in some countries. And it really depends, if you look at it as a privacy or interest or personality right, I guess, or a property interest.
And I think Mark was completely on the point there -- and I said this was my last point, but the last thing is this. Perpetual moral rights scares people. Well, if you look at the actual cases. First of all, there are very few countries that have perpetual moral rights, but let's say France always come up.
Most of the cases fall in the sort of title -- the heirs of Bach or Victor Hugo. They just can't prove that they have the right, so the court will very often dismiss the case. Not because there's no infringement. They don't get there. They just say well, we're not sure you're the person to exercise the right. So that's another scarecrow that I think can remain in the field.
>> And I was actually going to follow up on that because that was -- it's not really a question we were going to discuss when we were talking about this panel, but you alluded to litigation about moral rights. And I guess one of the questions I would have is those countries that do have stronger moral rights, such as France or other countries.
Is there a lot of litigation over issues of attribution or integrity? And what type of litigation do you see? What are people arguing when they're trying to actually raise their moral rights in court?
>> Well, there is some litigation. It's a small percentage. I don't have the number but a small percentage, obviously of all copyright litigation. If you open a -- let's say a French copyright textbook, you won't find that many pages on infringement of moral rights.
Very often it's a licensee making unauthorized changes. Or a licensee producing a version of the work without the author's name. Or the author's name is so small that you can't find it. Those are the kind of cases that you see, and they're easy for a court because those are pretty clear-cut violations.
The one case that, of course, many American law students learn about is the John Huston case, where John Huston's heirs -- his wife, in fact -- was in court in France and said you cannot show the colorized version of my husband's movie because he specifically wanted it in black and white. And the court agreed. And so the colorized version, as I understand it, was not actually shown in France.
But as you can see, those are not that common. Most publishers have no interest in publishing a book without the author's name on it. Oh, this is a secret. You know, Stephen King novel but no one should know it's Stephen King.
There's really no interest. It's exactly the opposite. You want to know who wrote the book. If you're the consumer, you want to know who wrote the book. The publisher wants you to know. So there's not that misalignment usually between the licensee and an author.
>> And just one follow-up. And anyone from the panel can join as well. But you kind of gave the analogy of moral rights being the Zika virus earlier and that the United States should stay away from it.
I guess following up on your point that there isn't a lot of litigation over moral rights in some of those countries that have stronger or more specific laws. Does that suggest if the United States were to adopt something along the lines of what France has or what other countries have, in terms of more specific moral rights provisions. Would you expect to similarly not have a significant amount of additional litigation on those issues?
>> Well, you know the litigation virus is not the Zika virus and maybe there's --
>> There's another one.
>> That one here. But so I think there might be some test cases that need to be brought to have a little bit more clarity. But frankly, many other countries have had moral rights for many, many years. And again, you don't see it all that often because that misalignment between the author and the person exploiting the work is rarely obvious or present, in fact.
So, no I do not expect that -- actually attribution, as I said, if you're in this context that requires say, not to plagiarize, your, you know, attribution would come naturally. Most people would find attribution is fairly compatible with their practice. And integrity -- you know the Berne Convention says honor a reputation. The real question's how do you define that?
As I recall the Berne debates, someone suggested changing that for spiritual interests or something. What it shows you that countries were not quite sure what they were trying to get at. But it's a fairly fuzzy concept, so I think there's plenty of room for the US to define the cases as say, Canada does.
You really have to have a very objective case. It's not oh, my feelings are hurt. It's not that. You need a lot more than that to make the case. So that would be a matter of how the legislation, I suppose, is changed to fully implement integrity.
>> And then I think maybe going back to June and going down the line. And then I have a question for Eric. But we mentioned that Article 6bis of the Berne Convention obligates member countries to recognize essentially attribution and integrity.
But you mentioned that there were other rights that are considered moral rights. Why weren't those other rights also included in the Berne Convention? Any ideas as to kind of why they didn't think that they rose to the level of the type of protection that it's now obligated for the rights of attribution and integrity? June or --
>> Well, I'll just start by saying I don't think the right of withdrawal was ever as recognized as widely, so that's probably why that isn't in there. And the same might be true of divulgation, although it also is duplicated in part by economic rights. So I think that it wasn't seen as necessary as, you know, the other two.
So in terms of -- you know what happened was a certain number of countries had similarities enough in their law, and those laws were on the books. And these were the two that were really the, you know, the ones that prompted people to move forward. And that's why they became part of the Berne Convention back then.
>> Anyone else want to any --
>> So we've talked a lot about, I guess, the European basis in Europe, and now I want to turn a little bit more focus to the United States. And ask Eric how has the US considered moral rights? ^M00:39:55
>> Well, thank you. And Sandra injected a little bit of personal story into this morning's discussion. And I probably should do the same because I arrived at the Copyright Office on April 1st 1988. Just in time to work on Berne Implementation Act for my boss, for Ralph Oman who's here to assign me my first assignment. Which was to do the first and only study on moral rights in the United States and which we delivered in March of 1989.
And then to work on the Visual Artist Rights Act. So part of my preparation here -- I really don't think I'd given a lot of thought to moral rights for some period of time. But that flurry of activity, in the late '80s and early '90s, was something that I certainly had a front row seat, along with others in the room, looking at Marybeth and others here.
I schemed this as sort of seven steps, I suppose. And I'll be brief because we, you know, are limited in time. The first was what I'll call the prequel.
Considering US accession to Berne, which the '76 Act was sort of a partial step in the direction with copyright term and so forth. But in 1985, the US State Department convened a group of experts, the Ad Hoc Working Group -- and by the way, I've prepared a little chronological order of the history here. Especially for students and others who may be unfamiliar with it.
And Irwin Karp and a group of experts studied four basic subject areas on US compatibility with Berne, including moral rights. The final report was issued in April of 1986 and reprinted in Senate hearings. And I've given you the citations.
And the best way to summarize it is to read the conclusion of chapter six of moral rights and the final Ad Hoc Working Group. And remember, their task was to "identify those basic provisions of US law relevant to US adherence to the Berne Convention and to analyze their compatibility with Berne" closed quotes.
Here's what they concluded. "Given the substantial protection now available for the real equivalent of moral rights under statutory and common law in the United States, the lack of uniformity and protection of other Berne nations, the absence of moral rights provisions in some of their copyright laws, and the reservation of control over remedies to each Berne country, the protection of moral rights in the United States is compatible with the Berne Convention." So that was the prequel in 1986.
Then came US accession for real of the Berne Convention for the remaining couple of years. US accedes on March 1st 1989. A lot of House and Senate hearings on the subject. Round table discussions. Irwin Karp and others at Columbia Law School. And I've given you the citations for that of experts talking about moral rights, explicit moral rights under the US.
Is it necessary for the US to amend its law to accede to the Berne Convention? The first -- there was by the way a bill, HR2400, which would have granted explicit moral rights to film directors and screenwriters. There was, in the first iteration of the Berne Implementation Act, explicit moral rights taken for the most part from the language of Article 6bis, the right of attribution. And Barbara Ringer always scolded me never, ever call it the right of paternity. And the right of integrity.
And that was ultimately stripped out of the Berne Implementation Act. And this was the legislation that was necessary for the US to accede to Berne. And what the US did then and often still does with most treaties is first we amend our law. Then we accede to the treaty. So this was the implementation act, which was going just ahead of our accession to the treaty.
The House and Senate ultimately concluded after hearings and consultations with US agencies, trips to Geneva with WIPO, of foreign governments and experts, that explicit new moral rights legislation was not necessary for Berne implementation. And I've given you the language from the House report on Berne implementation and the Senate reports from 1988. And reading the House report, based on a comparison of its laws with those of Berne member countries and on current status of federal and state protections of the rights of paternity and integrity -- they clearly had not spoken to Barbara -- the committee finds that current United States law meets the requirements of Article 6bis.
And the Senate report. More or less the same thing but laying out the common law principles. Such as liable defamation, misrepresentation and unfair competition. Which have been applied by courts to address authors' invocation of the right to claim authorship with the right to object to distortion, concluding the same. That no new rights were necessary -- and this was important -- citing Dr Arpad Bogsch, who was then the Director General of the WIPO.
That the United States may become a member of the Berne Convention without making any changes to US law for the purposes of Article 6bis. And truth be told, Dr Bogsch wanted the US so badly to join the Berne Convention, he would have pretty much said anything for the US to join. Remember the US was the 89th member -- I believe that's right -- of Berne.
And there are now what, 160 countries. So it was really important to the WIPO and for the importance and still preeminence of Berne for the US to join the Convention. The House reports and the legislation also made clear that Berne was not self-executing.
So that there couldn't be lawsuits claiming that notwithstanding Title 17 or other federal and state laws that the US was not in compliance with Berne. Or that there would be redress in federal or state courts based on the actual language of Article 6bis. So sort of sealing that off, the House and Senate language. The ultimate Berne Implementation Act made very clear that Berne was not self-executing.
But the mid-1980s -- you know a lot of changes going on. And the nature in technology for dissemination of works, especially motion pictures and television programs. A lot of alterations being made for post-theatrical. Especially for students in the room.
Think about a time when -- really films until that time are only shown in theaters. And now you have the explosion of videos, cassettes and home-viewing. And suddenly post-theatrical alteration is a huge issue.
And since where the motion picture industry is mostly living in a work for hire regime, the creative artists are saying but we've given up our rights for these post-theatrical alterations. And attribution. Yes, there are guild agreements. Yes, there are personal contracts. But there's also alterations going on.
There was the colorization of black and white movies, which begins in 1986. There was time compression, which is the fitted into broadcast time slots. You may not notice but sometimes films are actually sped up and compressed to fit into the broadcast time. There was panning and scanning to make the aspect ratio of what's a theatrical screen fit onto a television screen and so forth.
A lot of high-profile hearings. Steven Spielberg. George Lucas. Sydney Pollack. Woody Allen. Dozens of directors and writers were all at hearings. If you ever -- I know that Ralph testified at many hearings. And usually we would watch the entire room empty out as all of creative artists left the room and the House and Senate members, while the copyright office went into to testify moral rights right behind them.
It was a huge high-profile issue at the time. And the question was what to do about it? So Congress asked for a study. One year to study technological alterations to motion pictures. It was Mr Castameyer and Mr Moorhead, the House and Senate Chair and Ranking Minority Member. Which Ralph and Bill Patry and I co-authored and delivered March of 1989.
The timing's interesting. The US has acceded to the Berne Convention on March 1st 1989. We'd already acceded by the time we turned in the study. Take a look, if you're interested. Chapter five of the study is the summation of moral rights legislation.
And then just you know a couple of other points in the history. So the spinoff on the moral rights issue, in the motion picture area, was the National Film Preservation Act of 1988. Notwithstanding that moral rights had been taken out of Berne Implementation Act, directors and writers and others went to an Appropriation Subcommittee Chair Sid Yates and got an amendment to the law to create a National Film Preservation Board here in the Library of Congress.
That films would be selected to a registry. And those films on that registry couldn't be or would have to have a pejorative label that they were altered -- if they were materially altered -- without the permission of the creative artists, the directors, cinematographers, and screenwriters. ^M00:50:11 And so that was sort of a brief moment of creation for that industry of moral rights.
But the legislation had a three-year sunset and expired in 1991. It was reauthorized to focus on film preservation issues, which still exist to this day. It's been reauthorized, and I've been a member of that board since 1989.
But then Congress not wanting necessarily to leave moral rights behind in the US decided -- and those steadfast in the position -- that no new moral rights were required for Berne -- adopted the Visual Artist Rights Act as sort of a subcategory of PG and S works, the pictorial, graphic and sculptural works -- foresaw a subclass of that and creating a right of both attribution and integrity. And because there was a particular interest on Senator Kennedy's staff for a right of destruction, also a right of destruction.
So after all of that and after Berne implementation where the industries -- and it's not just motion picture, magazine, book publishers and others and to the questions about litigation. I think a lot of it was the unknowns in the industries. Where industries were just, you know, you have these very labor-intensive industries.
And the fear of -- with deadlines and the publishing industry -- what's going to happen if these issues arise from one of the many creators, photographers or others? What will it do to our publication deadlines and others? And it was just that. It was a question mark and an unknown.
But the feeling for Berne implementation was we're fine because of all the reasons given. But you know the courts giveth and the courts taketh away. And in 2003 -- and I'm sure the next panel will talk about it -- you have the Dastar case. Which was, you know, at the intersection of copyright and trademark. Here you have a case where the term of copyright has expired.
And the Supreme Court in Dastar rules that once copyright has expired, works may be reproduced and disseminated, even without attribution. The court reasoned that federal and state trademark laws requiring a designation of quote unquote "origin" pertain only to the origin of the physical copy, not to the origin of the intangible subject matter of the copyright. So you know whatever we were talking about in that panoply of other rights and trademark law Lanham Act and everything, certainly were significantly scaled back by that case.
And then I suppose the final word in all of this was TRIPS. Yes. The US felt -- the US government felt somewhat confident in its position on Article 6bis of Berne, but --
>> Yeah, and I was going to ask -- and that was going to be my question. We talked about the fact that we have these obligations in separate panels. But we didn't talk about the fact that the TRIPS Agreement, for whatever reason, actually does obligate member countries to recognize Articles 1 through 21 of the Berne Convention. But for some reason does not obligate member of states to actually recognize Article 6bis, which is a question.
>> Yeah. Well, so then, in the timeline of it all, Berne -- excuse me TRIPS. It more or less completed in December of 1991, for all intents and purposes. It doesn't go into force until January of '95 and TRIPS in January of '96, although my friend Jane and I disagreed about the implementation date, I remember.
But the US government's position and others is TRIPS is a trade agreement. These others are copyright conventions and agreements. And in a trade agreement involving trade in goods, only economic rights should prevail.
And though -- you know TRIPS, like all trade agreements was heavily negotiated, US, EU, Japan, Australia, and many other countries. The US is a newly-minted member of Berne by this point. This is now in the early 1990, and the feeling is that there is no dispute settlement in the Berne Convention.
But there clearly is dispute settlement in the TRIPS agreement, which means that across the goods and services of TRIPS -- and you've got you know one of the TRIPS experts in the world, Daniel here, so you know you should be answering this, not I -- but the insurance policy is so you don't have dispute settlement on moral rights. That is if the US is not in compliance in a trade agreement.
And so you limit the TRIPS Agreement just to the economic rights. Read Article 9 one of TRIPS. And yes, members -- the US wants to, and so do many countries, import, by reference, all of articles 1 through 21 into the Berne Convention. But members shall not have rights or obligations under the agreement in respect of the rights conferred under Article 6bis of that convention or of the rights derived therefrom.
That's Article 9 one of the TRIPS Agreement. So it strips out -- countries can have moral rights, and many countries do. And the US, you know, by this time does in section 104A with the -- excuse me, 106A, with the Visual Artist Rights Act. And we do with a panoply of other rights such as they exist.
And certainly in the '90s before Dastar, more vigorous, let's call it, but at least not subject to trade dispute is the moral rights provisions of Berne. So that's sort of the nutshell history of US until, as Daniel and June mentioned, you know you have the digital treaties in 1996 and then the Beijing Treaty, which has not yet been implemented in the US.
>> Thanks Eric. And I do want to save some time to turn it over to the audience to see if we have any audience questions. But Daniel, did you have any -- did you want to add anything on the TRIPS point [inaudible]?
>> Well, you -- no. You got the official version [laughter].
>> Did you want to add an unofficial version, I guess? I'm scared to ask, but --
>> Yes. It may be true the US government was confident that US was complying with 6bis. But maybe not all that confident, I suppose. The other argument -- I mean to say that these are not trade-related rights when you can pull movies out of theaters. You know, as they did in that one case in France, of course, was the argument used by the Europeans to say see, it's very related and then you know. So it was kind of a discussion that I think in the end no one was going to die in the trenches for 6bis.
And the French government got an earful from many people once they showed the draft. But TRIPS was not negotiated on behalf of Europe by a French negotiator but by a Danish negotiator. And who knows. Maybe that made a difference.
One thing, though, is it's a very small footnote, but Eric said there's no dispute settlement in Berne? There is, but no one's ever used it because it's the International Court of Justice in Article 33. And the reason no one's -- well first of all, the US would have to accede to jurisdiction in the case. But also no one knows what it would do with an IP case. So no one's ever tried, but I just thought I'd --
>> I'd footnote that.
>> No. there -- the US would never concede --
>> To the jurisdiction.
>> That's right. And the Asphalt Jungle case is interesting because that happens in '86, I believe. The Huston estate. And here you have an agreement signed, a work-for-hire language in California. The choice law on the agreement is California law.
What the French television station was going to do was show the -- as only the French could do -- show the film first in black and white. Then in color. Then have a discussion of the merits or lack thereof of the color version and the black and white version. And the injunction was to prevent the screening of the colorized version by the screenwriter Ben Maddox and the estate of Huston.
Notwithstanding that it was work-for-hire, and they'd signed a choice of law in California. And the French court, as a matter of public order, rules that the moral rights sort of override all of the other provisions. I think that added to the sense whether or not streaming a film, you know, in color or something was that big of an issue for the motion picture producers.
It sort of added to the uncertainty about what might happen for works that have been created. And in this case, created under work-for-hire agreement and the choice of law in a contract that said it's clearly a Californian law. That raised at least the level of fear in some of the creative industries. Not all, but in some.
>> And June, did you have a extra point too?
>> Yeah. I just wanted to go back to the point about concern about litigation, if the US implemented moral rights. Now among the chief opponents of putting moral rights in the statute. When the Berne Convention was passed were magazine publishers, newspapers and the motion picture people. ^M01:00:03 And during the course of the Berne hearings, a number of international experts said well, you know, we have magazines, and we have newspapers, and we have motion pictures in our country. And this has not been a problem even though we have moral rights.
But the response to that was yes, but the United States is a much more litigious country. And I think that's true. And I think we have to be realistic about that, if we're going to go ahead at some point with moral rights.
I mean this is a country where you can buy a cup of coffee and put it between your legs on the car seat and then sue because you get burned. And sue successfully because you can get burned. And I think that that does reflect something about our society.
So if we were to go ahead and create moral rights at some point broad, in other words. I think it's important that they be very specific and circumscribed. As I think can be said reasonably of VARA. And you know that's just an important thing to keep in mind. That that particular concern will not just have gone away by virtue of the time that's past since the US joined the Berne Convention.
>> Okay. Can I --
>> Sure. Sure.
>> So actually, I agreed with what June said. But so American film directors and others are, in fact, typically recognized as authors in other countries. Even if there's work-for-hire here. In other words, a French court typically will not recognize work-for-hire as creating authorship in the movie studio. It will recognize first donorship, which mean the director still has these rights. And some European collectives actually that collect money for film that is supposed to paid to authors have had to make some interesting arrangements to be able to send that money to US --
I don't even know what to call them. Beneficiaries. So it's -- but the point here is that you don't see -- at least to my knowledge, you don't see a lot of US film director going around the world saying yeah, I can sue for moral rights infringement. You don't see, you know, a heck of a lot of that. So there might be more here, but -- and I don't disagree with that. Actually I think I said something along the same lines --
>> I will just say that with some people and directors are one of them. There's another thing operating, which is you'll never work in this town again, so you know, it's not just about legally what you have a right to do.
>> I agree.
>> And attribution is so well covered by guild agreements and all the other obligations that for anybody who stays to the end of a movie credits is not an issue. The motion picture industry, everybody is credited and the caterers included but --
>> That's true.
>> But it's --
>> So it should be easy then to establish an explicit provision in the United States law for attribution. Isn't that what the panel has concluded?
[ Laughter ]
I probably won't ask for an answer for that now unless we have some additional time. I did want to leave open at least five or six minutes for audience questions. And then, if you have any closing remarks we can do that, if we don't have a significant amount of audience questions. But I think we have one there.
>> Thanks very much. Steve Tepp, Sentinel Worldwide, on behalf of the Artists Rights Society. June, thank you very much for mentioning the droit de suite, the resale royalty. It seems to me that it certainly deserves at least honorable mention at this conference. And of course for those not familiar with it, it's the right of authors to receive modest commission from the sale of their works and resale of their works.
It's particularly critical, I think, and I'm asking for the panel's reaction to these observations. To artists whose works are valued for, of course, their artistic merit but for their relative scarcity as opposed to their ubiquity. Which is what the Copyright Act, the latter is what the Copyright Act most often is directed to facilitate.
And it seems to me that there's a trend towards the resale royalty. The EU has adopted it. Australia has adopted it in relatively recent years, and implementation has gone fairly smoothly. It's now on topic recurring on the Standing Committee of Copyright and Related Rights at WIPO. We have legislation pending in both Houses of the US Congress.
And of course, the copyright office has issued a report, which I think I'll end this with, this poignant statement. Without a resale royalty, many if not most visual artists will not realize a benefit proportional to the success of their work. So I just offer that up for comment-observation on the importance of resale royalty. Thank you.
>> Anyone want to briefly discuss --
>> Resale royalty?
[ Inaudible Response ]
>> Works of art certainly have a special status, right? It's like, in music, you don't ever want to get to the master. Or in movies, you know, the original copy. So that works of art, you're absolutely right on this feature. That the original -- you can make a copy, but it's never the painting on the wall, right?
But that being said, again, that's a right that scares some people. And it's implemented so, you know, many different ways. The typical case of course that you hear about is the Van Gogh. You know, the artist who sells the painting for five bucks, and then somebody sells it later for you know a lot more.
But in reality, you have typically in works of art, you have incremental value changes. And so some countries implement this droit de suite, like basically each time the work sells, you pay a percentage of the whole price. And some countries have only the difference between the sale price and the previous sale price.
There was a long discussion in the UK about this. So if ever this was to move here, I would certainly recommend that the Copyright Office pay very close attention to the debates in the UK about droit de suite. I think they covered it right, left, up, down, every other way.
>> Yeah. And I would just add that our report did mention the UK --
>> Of course.
>> And the fact that, in the UK, they were just going through like you know implementation. They had initially just implemented it, I think, for the life of the author. And then they, at the time, were about to extend it to heirs as well. And so one of our recommendations was to closely follow, kind of once it was fully implemented, if it actually affected the art market in a negative way.
>> You know, it just seems like it's something that could and should be done. I should caveat it by saying everything and nothing I've said is very controversial this morning. But speaking on my own behalf and not for the several clients I'm noticing in the room [laughter].
But no, I think that personally, yeah, there should be a resale royalty right when you think about works of art. And the, you know, the one-off sales. And the lack of, you know, whether it's as a percentage or as a percentage between the differential and the amount that you're talking about. As a way to compensate those that created the work, not those that are good at selling and reselling it. With all the respect to galleries and other places that you know there should be some compensation.
>> I think we're right at the end. I guess we have time for one last question, and then we're going to turn it over to the next panel.
>> Hi. I'm Carrie Devorah, Center for Copyright and Integrity and probably the odd voice in a room of lawyers to say I don't believe in resale rights. I think it comes down to contracts. You have the right to say I'm going to drop the contract and if you sell it. I don't think the government has the right to legislate. Other points were made up there they really come down to contracts.
My background is licensing. I entered that world over 40 years ago, and I retired a bunch of years back because of licensing. You need to understand there's a global access out there, so it comes down to artists being taught about a contract and the value of time, territory that dovetails into your talent. So I do not believe in resale rights. I think if someone's going to invest in you, they're entitled to make that money. Same way as a casino entitled to make money on your win because they provided the machine.
>> Thank you.
>> You don't know what the value of the work is at first. I mean that's the reason for renewal. That's the reason for copyright termination. I mean it's you know that the author is just in the unknown position at that time of first sale because she doesn't know what her work is worth. She knows what it's worth at that moment but she surely doesn't for the life of the copyrights.
>> And I would hate to cut us off. I know that we could actually get into a long conversation about resale royalty, but the focus of this panel and of the day is a more specifically on moral rights. So I want to thank all of the panelists here who've given us a very good overview of moral rights and the basis for our later discussions. Thank you very much [applause].
>> This has been a presentation of the Library of Congress. Visit us at loc.gov.
>> From the Library of Congress in Washington, D.C.
>> Aurelia Schultz: So for session two, we're covering the U.S. perspective and
to quote one of our esteemed panelists, "When the protection of moral rights is
brought up in the United States, commentators have always emphasized the
differences between continental Europe and the United States."
And our second panel is going to attempt to explore this unique U.S.
perspective. We're going to try not to delve too much into the comparative bit
that we already covered in the first panel. So I'll take a moment here to
introduce our panelists. I think we're mostly in the order that I have. Allan
Adler is General Counsel and Vice President for Government Affairs at the
Association of American Publishers. And then let's see, Duncan is next. Duncan
Crabtree-Ireland is Chief Operating Officer and General Counsel for SAG-AFTRA.
And then Mickey Osterreicher serves as General Counsel to the National Press
Photographers Association. And then we have Michael Wolfe, who is the Executive
Director of Authors Alliance. And then Professor Yu, who is Professor of Law
and Co-Director of the Center for Law and Intellectual Property at Texas A&M.
And there's more information about their backgrounds in your full program.
So to get started, as we've talked about a little earlier, the U.S. approach is
generally described including in our program, as a patchwork or sort of a
hodgepodge of state and federal law. So to jump in if you could each say a
little about one or two of these kind of patches. And I think Allan, we can
start with you.
>> Allan Adler: Thank you. I was very relieved to hear Eric at the very end of
the panel issue sort of a half lawyer's disclaimer. I was rather surprised to
see five lawyers on a panel and no opening disclaimer about whether or not
they're expressing views on behalf of a client or an employer. So I will do so, and
the reason for that is chiefly because when the House Judiciary Committee's
process on comprehensive review of copyright law considered the issue of moral
rights, they did so in a hearing in which moral rights was one subject combined
with copyright term and termination rights, which I think led people to look at
that hearing in two ways. One of which it was kind of a collective checkoff box
to make sure that even relatively obscure issues as far as the public was
concerned would be addressed in the comprehensive process of review. But also I
think it was a signal that these three issues together are issues that despite
any other pretense the committee might make during the process, are highly
unlikely to see any kind of reform legislation as a result of the hearing
process. And that is in part, because I think the issue was largely viewed as
having been put to rest during the period that the previous panel discussed in
the late 1980s. For the publishing community at the time, they had mustered a
sufficient amount of fire and brimstone to help put that issue to rest in terms
of legislation. I'll give you just a quick example of the kind of language that
was used at the time, testimony of the AAP before the Senate said that the
hearing raises the threshold policy question of whether to superimpose vague,
subjective, and wholly unpredictable new rights upon a longstanding, balanced,
and successful copyright system. Tell us what you really think publishers.
So I think that type of view of the issue is one that led us, at least at the
AAP, when the hearing was held two years ago by the House Judiciary Committee to
look at the issue of moral rights and actually to make the decision that we were
not going to submit a statement for the record because we didn't have anything
new to say about the issue. When I say nothing new it's not to say that we
don't have anything to say about the issue at all. In the 1980s we said a
great deal about the issue, particularly in terms of concerns not only that the
United States had bodies of law which addressed the issues of integrity and
attribution as they appear in 6bis, but also because we have laws that
distinguish the United States from the rest of the world, primarily, the First
Amendment in our Constitution, which protects freedom of speech from freedom of
expression generally. The Congress and the Supreme Court had no difficulty over
the years reconciling the First Amendment with U.S. copyright law,
notwithstanding the fact that some view the copyright law as basically
restricting what people can do when they choose to use a work of original
expression as a form of speech. But nevertheless, it has played a very
important role in shaping the way U.S. copyright law has in fact, been
implemented, and it's also an important bulwark with respect to the issue of
moral rights. Because if you look in this country at the issue of defamation
law, defamation law is a creature of both federal law and state law. Primarily
it's a creature of state law but the First Amendment makes it also to some
extent, a creature of federal law as well. At least when we're talking about
public figures or even about private figures but we're dealing with issues of
public concern and public importance.
So in the area of U.S. laws that were supposed to chime in and count for
representing the principles of 6bis on moral rights, one looked at the
issue of integrity and noticed that they talk about the ability to object to any
distortion, mutilation, or other modification of, or other derogatory action in
relation to the said work which would be prejudicial to the author's honor or
reputation. The interesting thing about that in terms of the way U.S.
defamation law works is the defamation law is probably both broader and narrower
in a number of senses. For one thing, the interesting thing about the
6bis language is that when we're talking about derogatory action that
would be prejudicial to the author's honor or reputation, we're talking about
derogatory action in relation to the specific work. We're not talking just
about general statements that would be viewed as derogatory or defamatory to the
reputation of the author. It has to be something that relates to the work that
then casts the author in what would be viewed as a disreputable light.
That of course is not at all true with respect to defamatory law in the United
States. The way the law has grown both as a matter of common law and in terms
of state statutory law, it's a civil wrong. It's a tort. It can be either
written in the form of libel or it can be spoken, which would make it slander.
It could even be expressed other than by writing or by oral comment. It must be
published in the sense that a third party must have seen, heard, or read and
understood it to be about the subject and to be damaging to the subject's
If you read the language of 6bis, it is not at all clear that this can't
be a direct discussion between a reviewer for example and the author of a work
in which the author concludes that the reviewer's comments are in fact,
derogatory in the sense that is contemplated under 6bis.
But most importantly in defamation law in the United States, the issue of the
falsity of the facts asserted with respect to the subject individual who
believes that his or her reputation has been harmed is an absolutely critical
matter. Even to the extent that the First Amendment provides some breathing
room for people to engage in commentary and speech that might be viewed as the
subject of that commentary speech is derogatory to their reputation and honor.
Unless they can point to the falsity of what was said, they really don't have
any kind of action with respect to slander or libel under U.S. law. Whereas the
notion, I think of comparative notion to defamation in 6bis doesn't
address the question of whether what is said contains an element of falsehood.
And as we know, we see a number of areas where people will engage in what has
been referred to as libel tourism to avoid bringing libel actions that really
belong in the United States courts based upon the subject matter, based upon the
vehicle that was used to make the statements an issue. But people tend to
travel to other countries, particularly the U.K. to file libel actions there
because of the differences in the coverage of defamation and what has to be
proven in order to be able to make a case.
In most areas of the United States it's also important that a defamatory
statement be one that isn't unprivileged. In other words, if you are in the
situation where you are a witness in a trial proceeding, whether it's civil or
criminal, your testimony is privileged with respect to any character of it that
might be viewed as defamatory because it is part of a process in which what you
say is being considered more for its relationship to the particular cause of
action or the particular charge defense than it has to do with the character of
the particular individual that the matter dealt with. So that's another
And of course as I mentioned earlier, there is this distinction made in U.S. law
between how the law treats a public figure and treats a private figure. And
generally speaking as we know under the Sullivan doctrine, when we're talking
about a public figure, an individual who's an elected official or somebody else
who has entered into the public spotlight as far as society is concerned,
generally speaking they have a heavier burden of proof with respect to an action
for defamation, whether it's libel or slander, in having to demonstrate actual
malice. Which is not only that the statements involved were false, but that the
speaker either knew they were false or spoke them in reckless disregard for
whether or not they were true or false. And none of this is reflected in the
language of 6bis with respect to the idea of harm to reputation or honor.
And most importantly, perhaps, in the United States generally speaking, with
respect to defamation, an action for defamation does not survive the death of
the subject of that alleged defamation. So you had a very famous case a number
of years ago where the children of the noted actor Errol Flynn attempted to sue
for defamation of Flynn's character based upon a book that was written, an
unauthorized biography of Flynn that alleged that he was a Nazi sympathizer.
And of course the court basically said that those actions had they been brought
by Mr. Flynn during his life, might have had some validity but they had no
validity as far as being brought by those who were his heirs or even his estate.
So that's a fairly substantial way in which even though the notion of defamation
law in the United States as it exists serves as a kind of an analog to the
integrity rights that are protected under 6bis. They're really quite
different in practice.
>> Aurelia Schultz: Thank you Allan. Duncan, Allan's covered kind of one way that
the right of integrity and the author's reputation can be protected. Could you
tell us a little bit about how publicity rights also work in this area?
>> Duncan Crabtree-Ireland: Sure that would be great and I'll probably mention
the Berne Convention less than anyone in the entire day. If you're thinking "Well I wonder why that would be?" In case you don't know, SAG-AFTRA is the union
that covers performers, actors, broadcasters, recording artists, and so as I
think was mentioned during the esteemed academic panel before us, largely those
individuals have been left out of the Berne Convention, but thankfully, there's
the WPPT for our recording artist and there is the Beijing Treaty. Hopefully
someday they enter into force for our audio visual performers, and so you won't hear
a lengthy discussion of Berne from me, but I would like to just talk for a
minute about the right of publicity and its importance, particularly to
performers since that's the perspective that I come from, spending almost 24
hours a day, seven days a week, 365 days a year around them.
I think for most performers, you know, we've had a, I think for me, a very
fascinating academic discussion so far about how the various elements of moral
rights, the patchwork quilt work. For most performers, I think they're more
interested in a functional approach to these rights, because what they're
interested in is really two things as has been stated by several other people.
Number one, the question of how they can protect their non-economic rights,
whatever those rights may be and number two, how they protect their economic
rights. And I would say not necessarily in that order. Depending on the
performer, the reality of course is making a living as a performer is often the
number one consideration for most performers. It's a very difficult career to
pursue. It is a lifestyle for most performers where fighting for the very, you know, basic
elements of life can be a real challenge, and so as representatives of performers
for those who have not achieved a high degree of career success, basic elements
and typically compensation are the number one consideration.
And so the right for publicity as part of a broader moral rights patchwork is
really important and is in fact is utilized. For those who might not be paying
attention to it, there have been a number of high profile cases, litigations
that have been initiated seeking to enforce rights under the right of publicity. And I
guess I should just say you know, what it is or what form it takes at least here
in the U.S. From some people's perspective, regrettably it's not really a
federalized right. This is a right that is a sort of common law right that you
see in a number of states. Last count I think around 28 or states have some
form of either common law or statutory right of publicity embodied, you know, there's a
few states known as being very receptive to right of publicity statutes that
have really built a strong framework for individuals and performers, in
particular, in my perspective, New York, California, Indiana jump to mind as a
few of those. But I do think that it is more than an academic case. There have
been a number of cases in the Ninth Circuit for example, and in other circuits
in the U.S. where various types of performers have sought to pursue economic
compensation for violations for the rights of publicity ranging from commercial
advertising types of cases to cases involving particularly video games in recent
years. There is, I think, sort of a brand integrity element of this, particularly that
you see in these cases that have made it into the appellate process where we've
got compensation on one hand where we're got a desire to really use the right of
publicity to protect the types of uses that are made of image and likeness of
individuals. And that's something that otherwise really you have to rely on a
contractual framework to protect outside of that and maybe the Lanham Act which
thankfully I'm not responsible for talking about today. And so I think from a
performer's perspective, that is a really important option.
We did see recently I mean, I think a very interesting litigation attempting to
pursue this type of brand integrity or personal rights protection through a
copyright angle which of course is the Google Garcia case and, you know prompted,
I think, some very interesting writings in the Ninth Circuit level in
particular. So for those who haven't checked out Judge Kozinski's opinion in
that case and the subsequent en banc result, you should probably do that. But I think that, you know, from my perspective, that's the type of case that really never should have been brought in the first place, because a better, a lot of us were mystified as to why the plaintiff in that case didn't pursue a right of publicity approach to that issue rather than the copyright approach that was pursued. And so from a practical point of view, again a functional point of view, that's something that we always try to discuss with our members and our performers which is to really make sure that they have an understanding because it is a patchwork, of the various options for seeking to vindicate your rights and making sure that when you do that you don't create unfortunate or counterproductive precedence or, you know, cause harm to an otherwise precariously balanced system. I think I couldn't wrap up without talking for a minute about the Beijing Treaty. It's something that's very close to the hearts of our members, particularly our actor performer members, obviously our recording artists members have enjoyed similar protections under the WPPT for some time. And actually when you look at the range of our membership, they speak out very strongly in favor of the Beijing Treaty, both from with the knowledge of the specifics of the treaty which obviously is complex and takes some time to understand, but also from a more fundamental place which is the really in some ways shocking lack of international recognition of performer's rights in the audiovisual space for such a long time and the joy, frankly, that our performers have setting aside the details as the concept of being recognized in the way that they haven't been so far and even our recording artist members have stepped up to speak out and say it's not fair that our actor brothers and sisters are not protected in the same way that we as recording artists are at the international level. And so that's something that's really important to us, of course, the implementation; someone mentioned earlier that the president had sent the treaty to the Senate for ratification and, of course, the implementation package has also been made public and there are definitely some interesting issues that really, I think you know, relate to primarily the anti-bootlegging area which is the focus of the implementation package that's going to cause some interesting debates. And I think there is some disagreement about the necessity of the scope of the changes that are proposed in the implementation package, but ultimately, it is our hope and desire that moral rights for all you visual performers get enshrined in international law in way that's meaningful both on a detailed and functional level, but also from sort of the philosophical and principle level to ensure that we would then finally have a broad range of rights for all types of performers; moral rights and economic rights at the international level.
So I'll think I'll stop there. Thanks.
>> Aurelia Schultz: Thank you. And you mentioned your relief not discussing the Lanham Act. And Eric very helpfully on the last panel summarized Dastar for us. So Professor Yu, if I could ask you to kind of pickup that heavy load and tell us a bit about Lanham Act and using statutes like that that are not copyright law to help protect something like moral rights.
>> Peter K. Yu: So in terms of unfair competition law, we should start over Section 43(a) of the Lanham Act, and so Eric earlier mentioned at the Dastar case and I suspect Professor Ginsburg will also talk a little bit about that as well. And so for Section 43(a) we do, it offers two different types of protection. The first one is it protects against false designation of origin, so basically the false designation that would cause confusion over origins, sponsorship, or association of the good. And the second thing is about misrepresentation of the nature, characteristics, qualities, or geographical origin of the goods. So from a standpoint of more rights, the provision would prevent you from providing your name to some other works that's not being created by you or misrepresenting the nature of the work. So, a good example would be the Gilliam case, which in the classroom you should refer to as the Monty Python case, where ABC took out 24 minutes of 90 minutes programming and showed it and claimed that it's basically by Monty Python, so when Monty Python saw that, it was appalled by the disjointive format of the programming that has been shown on TV and tried to pursue and action based on both copyright, as well as, Section 43(a). And so with respect to 43(a) claim, that's basically when you're showing the older version without authorization and claiming that it is ours, than you're not really presenting a product, but misrepresenting what they have. And so that's a very good example, but I think a lot of the audience members are very concerned about the Supreme Court case of Dastar. In that case, the issue is basically about the TV series that's been put together by FOX and that has gone out of copyright and that's not been renewed and when they saw put together videos have a condensed version they slapped the opening credits, they changed the, I think, the toward the end with the recapitulation and re-order it a little bit and show it in a more condensed version but just include Dastar right there without mentioning FOX. So the, when case went all the way to the Supreme Court the issue is whether they would be able to pursue a Section 43(a) claim based on misrepresentation, and as Eric mentioned early on, what it could look at is basically the origin of the good is the origin of the video that which is the manufacturer of the physical goods and that's why they're not focusing on the origin of the footage or origin of the intellectual material that has been captured within the videotape. And I think there are two different readings, and I think a lot of the commentators, a lot of the lawyers have been debating as to how broad you're going to read this, or how narrow you're going to read it. I think the broad reading is that we focus on the physical goods and you will not be able to claim any false designation of origin based on the content inside the physical good, right. So that would be a very broad reading of the Dastar case, but I'm more in line with the camp that has a more narrow reading and a more narrow reading is that if you look at the case it's about public domain material that's already gone into the public that's not protected anymore and if you want to go even deeper you can see that a lot of the footage is actually from the allied forces and so it's not even from FOX, right. So you have a lot of different ingredients that will actually lead the court to say that, "Well if you look at the origin, than, there is no need to actually credit faults especially when it has gone in a public domain." So that's one way to look at it. And then I also know a number of commentators have actually separated non-attribution from misattribution. So non-attribution is basically you did not include the name to the footage, in the case, footage that's already gone in a public domain and misattribution is basically similar to the Gilliam case were you actually put somebody else's name or you alter the state of the footage and then you claim that it's the original. And in the Dastar case I think it goes closer to non-attribution but not so much to misattribution, so had the Gilliam case been put forward before the Dastar court, I guess the outcome may be somewhat different because of an altered state, but I think the concern for a lot of commentators is that after the Dastar case there are also a lot of lower courts that are trying to apply the very broad reading of Dastar and showing that there would be very limited protection under Section 43(a) in terms of the attribution interest within the intellectual work and I think that has caused concern for a lot of those people who want to have stronger moral rights protection.
>> Aurelia Schultz: Thank you. Keeping on the attribution track there, earlier in the first panel there was mention of some of the newer WIPO Treaties and of course those include protection for Rights Management Information or RMI. So Mickey could you talk to us a bit about RMI protection as a way for protecting moral rights?
>> Mickey Osterreicher: Sure. So with my press background for those of you who are not connected to the Internet, right across the street I'll let you know that the Supreme Court denied cert in the Google case, the book case. So I think that's something people will be talking about today in our area, but that breaking news aside, earlier somebody talked about how it really wouldn't make any sense to publish a book without somebody's name on it. And yet with hundreds of millions of images being uploaded almost daily we are seeing all those images for the most part without somebody's name on it, and the Right Management Information is critical to at least visual journalists and visual creators in terms of doing that. So attribution, attribution information under moral rights; the problem under moral rights they have is that it's very narrow in terms of it's got to be for exhibition. It has to be numbered no more than 200 works, more than 200 copies made and for the most part, those visual images in terms of photography will not fall under those protections, so what else can we do? And then we have a number of, now we get in to all the acronyms, and again, standards. For Rights Management Information, there's a Copyright Management Information, CMI and that's codified under Section 1202 of the DMCA, and we can talk about that. I'm not sure if you want to talk about that now or when you go to the next question. Then, you know, then we have IPTC and EXIF and then PLUS and we don't really just yet have a standardization in terms of how we are going to allow the people that create visual works to have that attribution. Whether it's information just about them and even when there's information there that will help people identify who it is that created that work often times that information that is referred to often as metadata is stripped out of that of the visual works and we have pretty much almost instant orphan works if you will, for an image that could have been created only moments ago when it goes up on the Internet and is seen around the world. Somebody may not know who it is and often times these images are being used without permission or credit or compensation, and that really is a huge problem. You were talking about performing artists in terms of visual artists trying to have and earn a living doing what they do in this brave new world of so many millions of images being out there, that's a dilemma that we are truly-truly faced with. So, you know, under DMCA they're certainly a number of really better protections as far as we're concerned; the real question is going to be then enforcement and that's seems to be a big challenge for everybody in terms of what they're dealing with, setting the standards and then enforcing them. So, I think maybe as we get into some more questions I'll get into more specifics.
>> Aurelia Schultz: Okay, thank you. And you mentioned a little bit there how dealing with photographers is different than other types of visual arts and we've talked a little bit about VARA in the first panel as well. Professor Yu, was there anything you would like to add on VARA that you feel we haven't covered in any either of the panels so far?
>> Peter K. Yu: So, we touch on VARA a little bit. I think this is actually a topic where most people are quite familiar. So the Visual Artists Rights Act which was adopted in 1990 covered three different types of rights. One is the attribution right, the second one is the integrity right, and then the third one is basically the right against destruction of works of recognized stature. And so when you look at the comparison, I think Daniel Gervais talk about VARA in the context of the Berne Convention, you can see that we actually offer more protection in terms of the right of -- against destruction of works of recognized statute and I think that type of right, you can discribe that as closer to right of destruction or right of integrity, but you can also make a good comparison to a lot of our state preservation laws. So in California, in New York, in a lot of places. And so that's more like a hybrid if I have to describe that, our public court as more rights with U.S. characteristics. And with respect to the Berne Convention I think the main concern for a lot of people is basically we are narrowing the scope of the protection, so the protection is only limited to a very limited category of works so that would be paintings, sculpture, prints and drawings. And so even within those categories, they would have more conditions attached to what you have, so a good example would be photographs. As we just heard earlier on, we will have limits to the number of copies, so a single copy or 200 or fewer copies and then after that you also have to have at least signed or consecutively numbered by the author and then at the very end you also have the purpose, it has to be for exhibition purposes only. And so there is actually case law talking about what would actually cover within that particular phrase, so you can see that it has been very narrow and I think in terms of protection, that's also more narrow than what we have in the Berne Convention. In the Berne Convention is usually life of the author plus 50 years as the standard, and in the U.S. we have life of 70, but when you look at the Visual Artists Rights Act, it's basically life of the author and that's basically it stop right there and so it's not really implausible to the duration of copyright, but it's actually shorter than that. And so I think with respect to the Visual Artists Rights Act, what's interesting is that we try to come up with something that is quite unique for us and that's also acceptable at that time, but at the same time, it doesn't fit very well in terms of both the Berne Convention, as well as, the scope of protection we get in both the attribution, as well as, right of integrity.
>> Aurelia Schultz: Thank you. At the end of the last panel, Miss Devorah mentioned that in her opinion most of this should be covered by contract law. Allan could you tell us briefly a little bit about how contract law can play into this and then we'll turn to Mike and hear about some specific types of contracts.
>> Allan Alder: Yeah, the notion of contract law was also one of the reasons why publishers generally objected to the imposition of a layer of moral rights on top of the existing economic rights and property rights framework of U.S. copyright law. In part because they felt that contracts gave the parties both great degree of flexibility in terms of how to develop and conduct their own relationship with respect to the publication of work, but at the same time, it addition to that flexibility, once a contract was in place and had been fully negotiated, it also added a great deal of certainty and predictability about the way in which the relationship would continue and the work at the center of that relationship would be dealt with. There is, of course, as has been said, there's not attribution right in U.S. copyright law specifically but that's an issue that is typically dealt with under contract. Many works in the United States are published either pseudonymously or anonymously and that's generally dealt with between the author and the publisher as a matter of contract. And the courts, of course, generally tend not to try to read between the lines of a contract unless it's absolutely necessary to do so. So it's the express language of what's within the four corners of the contract that ultimately shape the relationship of the publisher and the author with respect to a particular work and how copyright law is implemented with respect to that specific work in the context of that relationship. One of the curious things that we see though is is that sometimes I think that there is a situation where the notion of a contract or at least the way licenses are used today, can put the issue of attribution and integrity in opposition to each other. I'll give you one example; there is a pending rule-making at the Department of Education called the Open Licensing Rule in which the Department of Education is trying to encourage the creation of open education or resources through its direct competitive grant program. And as a result, what it wants to do with the rule is impose the obligation on any grant recipient that any copyrightable work that they produce with grant funds from the Department would have to be available publically as open educational resources basically subject to the equivalent of a Creative Commons attribution only license. The problem with that is that because they essentially say to the individual that if you receive federal funds to create a work, that work, not only is going to be subject to various kinds of adaptation and repurposing and alteration by other parties down the line, but at each instance they say, because they determine when they developed Creative Commons licenses that most people did at least want to have attribution as a requirement of the transaction. They require that at each stage of that process attribution to the original author be made and what that means is that you're going to have a circumstance where as a result of that kind of license agreement, that as a result of receiving federal funding and the contract terms for that funding, you're going to have this situation where an individual author continues to be credited as the author of a work after it has been substantially altered, repurposed, adapted in ways that that author might find absolutely appalling and completely at odds with their original purpose in publishing that particular work. So contracts can do a lot of things. They provide flexibility. They provide certainty. They allow the parties basically to decide their own fates within a particular transaction. Now we have heard on occasion that one of the reasons why moral rights needs to cut into that kind of flexibility and freedom of contracting is because frequently the bargaining positions of the parties, and in my field it would be the bargaining position between an author and a publisher, are unequal. Well, they can be unequal but in two very different directions. A very well-known author with a very long track record of success in publication typically will have more leverage than the publisher will in determining the transactional terms of the next publication if that publisher wants to become the publisher of the author's next work. Obviously the situation is reversed when you're dealing with an author, either a first time author or an author who has developed a little public reputation and little record of success in publications with previous authors or previous publishers. So, you find the situation where contracting is something that is more conducive to the U.S. system. It seems to be something that in civic code countries has to be cabined within the terms of civil law and that was one of the reasons why publishers continued to feel that a moral rights regime with that kind of European flavor would basically be detrimental to the way copyright had served the interests of this country.
>> Aurelia Schultz: So Mike, Allan mentioned Creative Commons licenses and they're something that has sometimes been talked about by scholars as potentially being Americas' moral rights. Could you share some of your thoughts on that and then also on the role of extralegal norms in the area?
>> Michael Wolfe: Absolutely. So Creative Commons licenses, which I'm sure many or all of you are familiar with are a suite of public licenses designed to allow the widespread sharing, in some cases reusing and remix, of creative work. And as Allan just recently mentioned, one of the or the essential condition of Creative Commons license in in fact an attribution requirement. So every license takes the form of usually a hyphenated string of two character abbreviations. A CC BY would be the CC attribution license and that can be amended by selecting from a menu of options, any of a number of different requirements.
The licensor can elect to not to disallow derivative works or to require that further, that creators of derivative works share them under the terms of the same license, share a like license. Or that require that any use of the work be noncommercial or down streaming is the working on commercial. And I would, just to back up, and respond a little bit to one of Allan's comments about open education resources and the use of a bare CC BY license and its impact on specifically the right of integrity. There, it is important to note that if it is a CC license that CC licenses also provide some measure for a right of disassociation and it does, it would be a flip, a little bit of a flip of a default but where work is modified in such a way that the author no longer feels comfortable having their name associated with the CC license standard terms do require that a downstream user remove the name of the original author where reasonably practicable So these are an interesting solution. I wouldn't call them an American solution entirely. They are American in origin. Creative Commons was originated in the United States, but it is a global licensing scheme and it's designed to be global and portable to that and the CC licenses provide for more rights. And in fact, while they, the, all of the licenses have a provision that waive moral rights but only to the extent necessary to reasonably effectuate the license and only where actually waivable in the jurisdiction. There's an interesting question of how and whether in Attribution, BY, license is equivalent to a moral right of attribution overseas. It seems to me that not only is the attribution right an effective tool for providing the recognition that many authors who use Creative Commons licenses specifically are seeking to garner through their work, that the CC licenses also tackle some of the more fiddly aspects of what it means to have an attribution regime in an online environment. And this is a lot of what Mickey was talking about with regards to Right Management Information, but merely having the name of the author associated with the work seems today to be somewhat insufficient for the purposes of having the author be properly credited. And to that end, CC is also a scheme, a digital recognition scheme where there's a cascading amount of copyright management information pointing both to the author, any attribution party specified by the author, the copyright notice, the terms of the license itself which are available on a stand-alone website that is easily linked to and findable. A notice refers to the disclaimer of warrantees and a URI or a hyperlink to the specified place where the information resides on the Internet. And given how easily Rights Management Information can be stripped, it isn't necessarily a complete solution to the realities of online attribution, but it takes the problem seriously and does so in a way that's readily accessible to any user of the Creative Commons suite. And there's also the interesting effect of having, of encouraging attribution beyond the scope of copyrights. So even though the Creative Commons licenses are not, do not report to be, broader than copyright, they allow for the varous exception and any other any other exception or limitation that the Copyright Act provides. They still nonetheless, encourage by taking advantage of most individuals risk eversion compliance with their terms. So, in the instance of over compliance, CC licenses in some way suggest and recommend attribution even where perhaps not absolutely required by copyright law or by the license itself. Moving on, I'm actually going to segue directly into a topic that's not entirely directly related, and that's how extralegal norms stand in place of moral rights in the United States. So, there is, as the panel has discussed, a significant patchwork of rights that to some extent, if not completely, provides something akin to moral rights protection to American authors and authors in the United States. But the reality on the ground is substantially lighter, or just based off norms and practices within communities and particularly around the norms of plagiarism which is what I'm going to focus on today. Plagiarism which comes from, I think the Latin root is from kidnapped or kidnapper, is an extralegal norm independently defined in various communities of practice that cautions against and provides often extralegal remedies for against the uses of works that are in some way fraudulent or unauthorized. And generally in the sense of not including attribution information that we take to be an essential part of their right, there isn't an identity with infringement here. And if you think of the way I've been trying to consider the topic is viewing the possible areas of wrong doing as almost as a Venn diagram where infringement attribute, a right of attribution and plagiarism are all mutually overlapping and characterizing the problem that way, there is a significant portion of the attribution right that might cover what today in the United States as plagiarism or what might not be plagiarism at all, but is nonetheless not copyright infringement either. So, plagiarism, I've sidetracked myself a little bit, and there are one of the virtues of having an extralegal norm as opposed to a formal statutory right, although I won't draw any conclusions as to whether this affects the propriety of having the statutory right, is that within various communities of practice there can be and, in fact, are different approaches to the question of plagiarism. In the case of literary works, academia has very strong norms about plagiarism. Not all of which are necessarily entirely consistent with what we might think of attribution for work. If a research assistant provides significant contributions to a paper, the fact that their name does not appear on the text will not generally be considered plagiarism or in violation of the norms of plagiarism despite the existence of the contributions. Meanwhile for student works, there are the taking of unattributed sources is a serious infraction that can result in expulsion or any number of academic disciplinary measures happening within the case of a school. Whereas in creative writing, attribution while considered a requirement, and there is a very strong norm of plagiarism might not be take the same way as a formal academic approach to credit, so rather than footnotes or citations, you might have something like Jonathan Lethem's excellent essay, "The Ecstasy of Influence" which is subtitled "a plagiarism" and composed entirely of plagiarized sentences. All of the sources of which are credited in a sense by the being listed at the end, but not in line or by, and not in quotation marks with ellipses and the way that lawyers are very familiar with in way that would meet the norms of academic scholarship. And in film, even in the Dastar case, that was acknowledged by Justice Scalia to be an effect of plagiarism and for FOX's purported remedy essentially to be an action for plagiarism. But it only, plagiarism only extends in many cases as far as norms allow and today we have contracts will usually negate some of what we would consider plagiarism or violation of attribution right in the sense of a ghost writing contract allowing for only the reported author's name and the not the ghost writer's name and I've completely lost my train of thought so I'm going to wind it down there.
>> Aurelia Schultz: Thank you. Thank you gentlemen. I know there's a lot more to cover. We have just a few minutes left for questions from the audience.
Where are my mic runners?
>> Unidentified Male Speaker: Great, thank you. I want to take exception to a comment that my friend Allan Alder made. I don't always disagree with Allan, but Allan stated and a good thing I'm paraphrasing, "Contracts give flexibility and certainty as to how work would be dealt with." Well, in my experience in my previous life at ASMP, it's a trade association, over the years the one thing that we could be certain regarding most textbook publishing licenses and contracts was that they were being exceeded. There was no certainty that the terms of the contract was being upheld. So, and I agree with you, the leverage issue I'm not sure that I think that tilts still more in favor of the publisher than the number, I guess, authors that have significant leverage over a publisher. I think it's significantly less than the number that don't, but as far as contracts were concerned, I don't think they gave any particular certainty as to what was happening with the future of a work.
>> Allan Alder: Well I guess, let me try to clarify that Jim because what I meant and I think you've referend this, is that the terms of the contract creates certainty. Now, whether or not the terms are complied with is another question and the fact that you are able to point out in a given situation that the facts of implementation of that contract don't match the terms indicates that there is at least the possibility and the intention of certainty, it simply isn't followed through in terms of performance. So I think that you still have the notion that contracts are useful for providing certainly the aspiration towards certainty and predictability, but you're still dealing with the question ultimately of whether or not the performance will be faithful to that aspiration.
>> Unidenfied Male Speaker: Then we still we almost agree.
>> Aurelia Schultz: Daniel.
>> Daniel Gervais: It's also for Allan and also on contracts. So you underscore the almost sanctity of contract, why it's so important, yet the United States has something that authors in other countries envy which is the termination of transfers which seems to be a little bit of government interference in the contract and I understand that some of the work around, especially that some lawyers in Nashville have tried for termination of transfers have not all been tested in court, but it's a pretty strong unwaivable on transferable right, is that unemployment-American?
>> Allan Alder: I think as you probably would agree Daniel that's the exception by far rather than proving the general rule of the way in which freedom of contract is generally allowed to operate within the copyright system and more importantly, drives the copyright system increasingly because of the increasingly broad role that licensing of the use of works plays. We're seeing within the context of the current copyright review this, you know, battle playout between those who are advocating the importance of continued certainty in definition with respect to ownership of rights with respect to a particular work whereas we're also seeing society that is increasingly content simply to have access to use the work is not really interested in ownership because of the other attributes that ownership usually has which requires maintenance, storage, care, things of that nature, upgrades, whatever. So I think that I wouldn't point to the exceptional circumstances as generally initiating the rule which I think continues to be that contract plays a very important role. I mean, one point I would I would also want to make here is that when we talk about the integrity with respect to the issue of its match on the U.S. copyright law with respect to the right to control the production of derivative works, but there's always going to be the question of what actually is derivative. At the far end of the spectrum, I suppose it's possible that using the common understanding of the word "derivative", work can steal completely the ideas of a prior author's work but not of course be actionable as copyright infringement, because it doesn't take the original expression. So, you have to have a notion of these legal concepts that is susceptible to clear definition. It's always going to be the case that we're going to have ligation, because as June mentioned we are a particularly litigious society and we'll always be trying to game the fringes and the edges of these rights. But today for example, we're seeing discussion of whether or not remixes and matchups are vitiating a derivative right. If that's true, I don't know that anybody has related the question of remixes and matchups to moral rights at this point, but it certainly seems to be that that's another avenue to be explored.
>> Duncan Crabtree-Ireland: Actually if before you go onto the next question just say -- I think one of the talks we didn't discuss, but is thinking about the importance of contracts with collaborative works and how the, you know, a lot of challenges would exist in the absence of the prevalence of contracts for collaborative works like in the audiovisual area because how you would coordinate and harmonize different participants, different moral rights and other rights without contract would be quite a complicated scenario.
>> Allan Alder: In fact, Eric's history of in the late 1980s at the time of Berne implementation and immediately thereafter left out the fact that in the hearings that were held about moral rights, the other main issue being discussed was the impact of moral rights on the work for hire doctrine and particularly because the Supreme Court had just decided the Reid case, and at the point there was a real question as to whether or not it was possible to create a situation in statutory copyright law that would accommodate that notion as the Europeans have it, but still be consistent with the way the Supreme Court interpreted the work for hire doctrine which depended greatly upon the way in which a written contract essentially defined the relationships of the party.
>>Aurelia Schultz: Thank you gentlemen. I'm afraid that's all the time we have for this session. We have a short break until 11:20 and then we'll have our keynote, and for those who are standing there is room up in the front and in the middle so please do feel free to fill in during the break.
[ Applause ]
>> This has been a presentation of the Library of Congress. Visit us at loc.gov.
>> From the Library of Congress in Washington, D.C.
>> Thank you very much. I now have the pleasure of introducing our next keynote speaker, Professor Jane Ginsburg. She will be talking about the most moral of rights, the right to be recognized as the author of the work. Jane really needs no introduction but I will give you a brief one. She is the Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia University School of Law and Faculty Director of its Kernochan Center for Law, Media and the Arts. I think she's been extensively quoted on moral rights so we are very, very pleased to have her here today. She's also my former copyright professor so I'm really excited to have her as well. Thank you. With that I'll turn it over to Jane.
[ Applause ]
[ Silence ]
>> Thank you very much Karyn and I'm honored to be introduced by a former student and thank you very much to the Copyright Office and to George Mason for having invited me to give this talk. The French revolutionary legislator, Le Chapelier, famously declared of all properties the most sacred, the most legitimate, the least attackable and if I may say the most personal is the right the author has in the fruits of his labor. Descending from those rhetorical and foreign heights I can affirm that the most moral, the most intuitive author's right is the right to be recognized as the creator of her works. In fact most non-copyright experts, in other words ordinary folk, think that authors do enjoy the right to be credited for their works. Of all the many counterintuitive features of U.S. copyright law, and they abound, the lack of an attribution right may present the greatest gap between perceived justice and reality. Even entities whose relationship to copyright is ambivalent for example Creative Commons, make attribution a default in their parallel copyright universe. Another example, many who lack enthusiasm for paying authors such as many online platforms, pick your favorite, query who needs money when free distribution gives authors great exposure. Exposure however implies credit for the work and of course we have assumed an international obligation to credit authors. The United States I believe is the only country including among common law countries not to include attribution rights in its copyright law. Whether or not we can get away with non-implementation of Berne obligations it is not a good thing to be an international scofflaw. Before I address the positive law and future prospects for moral rights in the United States let's consider some arguments for why our copyright law should not include enforceable attribution rights and I will say that I'll invoke three reasons, one theoretical and two practical. The theoretical one one might put under the rubric of post-modernism that attribution rights overvalue authorship, that they are a vestige of the romantic conception of authorship and since we don't believe in that anymore we shouldn't believe in attribution rights either and there are variations on that theme with which I imagine you're familiar. The second argument I'll call the slippery slope argument, that is attribution rights might be okay but they will lead us to integrity rights and we don't want integrity rights because among other things they limit other authors' creativity or for that matter the leeway that producers enjoy to revise works. Now how do we get from that slippery slope? It's actually not the right of attribution, it's the right to prevent false attribution that can lead to integrity rights. Think of the Monty Python case that Peter Yu evoked earlier this morning. There the right to prevent association of the name with a work that Monty Python didn't create because it was so very much altered was rendered enforceable briefly under 43(a) -
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[ Laughter ]
>> All right, of course we have a little Dastar problem that we'll evoke later but I think that analytically the right to prevent false attributes, not actually a moral right even though many common law countries include that in their moral rights provision because the right to prevent false attribution is the right to prevent the association of your name with the work you didn't create. What moral rights are about is the association of your name with the work you did create. Nonetheless if you're going to have both sides of the coin then you can see how the argument towards integrity rights gets constructed. The third argument is the most practical of all which is it's simply too difficult to implement an attribution right in practice. Think of the mess in our current case law about who is an author and that's even without the prospect of having an attribution right for actual creators regardless of whether or not the work is for hire so you have the multiplicity of potential authors, how are you supposed to recognize all of them, how are you going to decide which ones should be recognized even if you could recognize all of them that would end up meaning tiny print or endless film credits that nobody looks at anyway so it's not going to do authors any good. Now I think that there are some answers to the practical objections that I will address in the rest of this talk so let me first start with the sources of attribution rights. Some of these have been already evoked. There are international norms. There is the current state of U.S. copyright law, VARA and copyright management information. I've put in brackets various private ordering solutions. Can everybody see the slides? And I believe there will be a panel this afternoon talking about private ordering solutions and then I'll talk about potential sources in the U.S. copyright law for the attribution right. Starting with international norms. Daniel and others have already evoked Berne Article 6bis and that includes the right to claim authorship of the work. Now for reasons that will become apparent I think that there is a more important source from U.S. point of view of attribution rights and that's Berne Convention Article 10. This is the quotation right that provides that it shall be permissible. So this is not an option to states to allow for quotation rights, this is a direction to allow for quotation rights subject to a variety of conditions provided that they're making these compatible with fair practice so their extent does not exceed that justified by the purpose. This text precedes Article 9(2) in the three-step test which echoes some of these considerations. Most importantly however where use is made of the works mention shall be made of the source and of the name of the author if it appears thereon. So if you're copyright law includes quotation rights which it is supposed to then there is an obligation to include the name of the author if the author appears on the source of the quotation. So a couple of questions. First of all the three-step test doesn't say anything explicit about attribution rights. What's the relationship between 10(3) and 9(2)?
I would say that 9(2) does not override 10(3). 10(3) is more specific and it's apparent when one goes through the drafting history of the various iterations of the Berne Convention that the three-step test was not intended to override the obligation to mention the name of the author in the quotation right. I could also point out that the third step does not unreasonably prejudice the legitimate interests of the author. It's fully compatible with an attribution obligation. Of course one could say that not crediting the author unreasonably prejudices the author's legitimate interest but there's still a problem within the Berne Convention which is Berne does not define who is an author and in fact there are reasonable arguments although there is reasonable disagreement that the question of who is an author is left to national legislation and so work for hire is not necessarily incompatible with the Berne Convention. If that is true then that could mean that the beneficiaries of these mandatory attribution rights would be limited to nonemployee authors. Now, TRIPS has been mentioned a couple of times that are the moral rights in the Berne Convention not enforceable through TRIPS. Here's the text that says so and that's how come we have managed to get away with not actually implementing article 6bis but I would like to argue that the attribution obligation through article 10(3) is not a right derived from 6bis and since the carveout is 6bis and rights derived therefrom if the attribution obligation that accompanies the quotation right is not derived from 6bis it's enforceable through a WTO dispute resolution proceeding and so takeaway number one from this talk, the attribution right is enforceable in the context of the quotation right and I would be delighted if some government, France or otherwise, would like to bring an action against the United States [laughter] for nonenforcement of that enforceable obligation.
>> We are not encouraging that however [laughter].
>> Yes, Karyn and I had a few back and forths about the description of this talk. The version that is in the brochure is a little more vigorous than the original, well not my original but the Copyright Office's original description and Karyn wanted to make sure that the Copyright Office was not tarred with my attribution radicalism [laughter].
>> We are in full compliance with our international obligations.
[ Laughter ]
>> Okay, now as I mentioned United States is an outlier not only with respect to those suspect civil law countries but also with respect to common law countries. Every common law country has an attribution obligation in connection with copyright exceptions such as fair dealing which is not quite fair use but there's some similarities and some other copyright exceptions as well subject to a reasonableness proviso but nonetheless everybody else has such an obligation. I'll also point out that the European Union has not harmonized moral rights but in the Orphan Works Directive there is a provision, Article 6(3) that requires the name --, including the name of an identified author if the work is disseminated under the EU orphan works regime. So that's the international landscape, how about in the United States? As you can see I don't think much of VARA and I'm going to explain why I don't think much of VARA for this purpose. Now Section 409(b) is interesting because it does say that the author's name shall appear on the registration information however that probably means the statutory author and therefore this is not a source of attribution information for nonemployee authors and then the other possible locust for attribution rights is copyright management information so let me talk about both VARA and section 1202. So the definition of a work of visual art is extremely narrow. There are very, very few works that actually qualify for attribution rights and probably the most significant limitation for works that potentially qualify is the requirement with respect to photographs that they be a still photographic image produced for exhibition purposes only. I don't think that such a category exists. It didn't exist in 1990. Maybe that has been created for purposes of compliance or qualifying under VARA but it's a sort of a strange category and in any event would be --, the image would be protected only to the extent that it fell within this category. Any additional images if they didn't disqualify the photograph entirely would in any event not be covered by VARA and this becomes clear when you then look at the scope of protection. You have the right to claim authorship of that work but it has to be a work of visual art, a very, very narrow category, to prevent the use of his or her name as the author of any work of visual art which he or she did not create but that's not a general false attribution provision because it only applies to putting the author's name on another "work of visual art" so very narrow in application and with respect to the tie-in between attribution and integrity again it's limited to that very small category of works so this plays out as follows. There's no attribution right for any work that doesn't come under the narrow definition of VARA. If the author's name is put on an artwork that she didn't create but it doesn't fall within the narrow category so it's not a photograph produced for exhibition purposes only for example there's no right and of course there's no claim for the reputation harming distortions of the work if the work doesn't qualify as a work of visual art so it's a tiny, tiny universe. Is there -
It's a tiny universe that might have bad ripple effects as a result of the Dastar decision. This is the case that all moral rights advocates love to hate for reasons that I think Peter Yu has already made clear but let me add one more. There is a suggestion in Justice Scalia's opinion of a preemptive effect that the only affirmative attribution rights that we have in the copyright law are in VARA and well if Congress had intended to have anything more than that anywhere else in the law that would be superfluous so a law should not be interpreted as being superfluous even though if you thought of this as a Venn diagram you would have what VARA covers is like a pea in a watermelon so the ripple --, to argue that the fact that there are --, that there's a tiny shred of attribution rights in VARA somehow that means that there can't be attribution rights anywhere else in any other law is I think sort of pernicious so that's another reason to deplore the Dastar decision. All right, let's turn now to copyright management information. The locust for this is another international treaty but the WIPO copyright treaties post-date TRIPS so their norms are not enforceable through TRIPS our compliance is a matter of goodwill, of course we totally comply but there's no --, we can't be hit over the head if we don't comply and indeed one could argue that we don't comply because the text of the WIPO Copyright Treaty Article 12 and the equivalent in the WPPT, well actually never mind the WPPT, just stick with Article 12, the standard is this double knowledge standard which as we will see is problematic but if one knows that the removal or alteration will enable facilitator, conceal and infringement of any right covered by this treaty so the new rights in the WCT or the Berne Convention. The rights in the Berne Convention include the right of attribution so under the WPPT removal of copyright management information that leads to a violation of the attribution right is actionable but if you look at our text --, I'll just move ahead for a moment, the standard for our text is having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right under this title but we don't have an attribution right under this title apart from tiny, tiny VARA so that means that there is a disparity between the scope of the obligation in the WIPO Copyright Treaty and the way we have implemented that obligation in U.S. copyright law. The mere fact of denying attribution through removal of copyright management information does not suffice to make out a violation of our provision. So what does make out a violation of our provision? A few questions that the courts have grappled with, what is copyright management information, where must it appear and the knowledge problem. There had been some dispute about whether copyright management information includes --, is only digital information or is any identifying information as set out in the statute. I think the majority trend, the overwhelming majority trend today is that it's not limited to digital information. The text after all says including in digital form, well including implies that it also covers not in digital form. What's helpful here is that the statute lists among elements of copyright management information the name of and other identifying information about the author of the work. However is that a statutory author or is that an actual creator? We're back to that problem. We've narrowed the zone of beneficiaries of some CMI claim if it's limited to statutory authors, however I think there is a means, if the Copyright Office were so willing, to include more actual creators not just statutory authors because the statute in number eight gives the Copyright Office the power to prescribe other information so the Copyright Office could say creators regardless of work for hire status. The problem is that copyright management information is not obligatory. Copyright management information is applied by the copyright owner who may not be the author and therefore there may not be a total alignment of interests and I think the way the statute is written which says -- lists a whole bunch of elements and says any of these, that to me implies that there is no obligation, that you can't really read the statute to say if you're going to --, you don't have to apply copyright management information but if you are going to imply copyright management information you must include all eight of these. I don't think, much as I would like, I don't think that that's an appropriate reading of the statute. Other questions that Section 1202 has given rise to which is where is the copyright management information? Does it have to be embedded in the copies themselves? The statute doesn't say that. Conveyed in connection with is pretty broad and so if for example as was mentioned earlier the Creative Commons licenses are explained on the Creative Commons website you could argue that the combination of those icons plus the explanation together satisfies the requirements for copyright management information. Case law is divided on whether just having a copyright notice constitutes copyright management information. There's also questions about where this information should be placed. In some respects it harks back to the bad old days of mandatory formalities and where you place the notice. You might lose your copyright if you placed the notice in the wrong place for some decisions seem to lead to a conclusion that if you don't place the notice in sufficient proximity to the element that you are claiming copyright management information for then it's invalid. Now the hardest part is the intense standard because as I mentioned it's a double intent standard. Let's look at 1202(b) although the reasonable grounds to know the last part qualifies both 1202(a) and 1202(b) so you intentionally remove, so there's a knowledge element there, or you know that somebody else has removed that copyright management information but that's not enough. Then if the first knowledge standard is met it is also necessary to show that if you distribute or publicly perform and so forth the altered or removed copies of the works you're doing that knowing that not only that the management information has been removed but also that you have reasonable grounds to know that that removal or alteration will induce, enable, facilitate or conceal an infringement of any right and it can't conceal an infringement of an attribution right because we don't have an attribution right and that's where the cases, many of the cases fail, the attempts of authors to invoke 1202 as a means of protecting their--, identifying them with the work that it would have to be shown that the distributor not only knew that the information had been removed or changed but that the distributor had reasonable grounds to know that that removal would facilitate the infringement of other --, violation of rights, other rights, other economic rights. Sometimes that can be made out as in the Agence France Presse case against Morel but there are a lot of cases where it has not been possible to make the link between knowing removal or knowledge of removal and reasonable grounds to know that that will facilitate a downstream infringement of an economic right. So that is a problem but I have to say that we didn't make up the double knowledge standard. That comes from the WIPO Copyright Treaty but what doesn't come from the WIPO Copyright Treaty is the linking to the violation of an economic right as opposed to the violation of an attribution right which is why I contend that as enacted 1202(b) is of some help but it could be better and moreover it's not consistent with the international text. I don't know if Karyn wants to say anything about that. All right, so let's turn to the more positive aspects. What are the prospects for moral rights in the U.S.?
And I've divided this into without legislation and then what if we actually had a statute. So without legislation, I think that one strong possibility is that the inclusion of attribution should be --, can already and should be taken into account as part of the first fair use factor. It's not necessary to rewrite 107 to add an additional factor but as part of the nature and the purpose of the use attribution could be taken account of. Now I have to acknowledge that there is very, very little case law on this. There may be two cases that consider that failing to attribute cuts against fair use but fair use is dynamic and perhaps some courts, particularly if they were sensitive to my slam dunk international obligation argument might interpolate an attribution element into the consideration of the first fair use factor. I think there are things that the Copyright Office could do to make Section 1202 more effective. I mentioned including authors regardless of their work for hire status. I also think that the Copyright Cffice could sponsor the development of best practices for identifying authors and perhaps the next panel will talk more about that, that as mentioned earlier many common law countries include a reasonableness condition as part of fair dealing so what's reasonable could be subject to development through best practices or other out of multiple stakeholder forms of consultation. That's the way Australia does it. Australia's statute delegates to best practices so I think that as part of an accompaniment to a fair use inclusion of attribution as part of the first factor there could be parallel development of reasonableness standards and also development as a practical matter of how are you actually going to implement the information about who is an author to be credited. And then there's the question of waivers. Although I've said very bad things about VARA there is one respect in which I think VARA is pretty good and that's on the waiver standard and I'll return to that when we look at what a statute might include but I think the Copyright Office could also develop the waiver issue. There was a study that the Congress directed the Copyright Office to prepare in connection with VARA for how the waiver practice was actually happening but the study concluded that there was almost no information out there at the time that that study was undertaken but perhaps that could be revisited. Okay, now let's call this let's dream. What if we had moral rights legislation? I think it has to answer the following questions, who are the beneficiaries, what violates the right and the waiver issue. So in my world a human creator regardless of employment status should be the beneficiary of an attribution right. I think that the monkey in Borneo does not have copyright or attribution rights but human creators as opposed to [inaudible] authors should have attribution rights. That doesn't tell you who is a creator who is entitled to attribution rights but we do have case law. It's not always coherent and it's subject to lots of criticism but there has been an attempt in the courts to develop the concept of who is an author usually in the context of joint works because somebody comes out of the woodwork and says I'm an author too and not all of that case law is laudable, I'm thinking particularly of [inaudible] but there is work percolating from the courts. Perhaps we could continue to develop the concept of who is an author and then import that to who gets attribution rights. All right, scope, I think that the duration should be the same as for economic rights. I do not think that attribution rights should be perpetual even though from a kind of consumer protection point of view I think that there's a consumer interest in accurate attribution whether the work is in the public domain or not but as a matter of copyright law I think that the right should be coterminous with the economic rights. The right would be infringed by omitting the author's name subject to reasonableness requirements and as mentioned earlier I think those reasonable requirements could be developed through a multi-stakeholder consultative process. The last suggestion I'm ambivalent about, false attribution. I said earlier that I think that false attribution is actually not a moral rights issue and that common law countries have to some extent conflated unfair competition issues with moral rights. The only reason I would put it in his because of the Dastar problem. Peter Yu mentioned that there's the broad reading and there's the narrow reading under the broad reading. There may not be a 43(a) claim for false attribution. Lower courts have by and large been taking a broader reading. I think that while we're dreaming the better approach would be what Justin Hughes has suggested which is to "fix the Dastar gap by amending 43(a)" to deal with false attribution and then I would take false attribution out of a copyright attribution provision, but if we can't fix the Dastar problem then this is better than nothing but I acknowledge that analytically it's a different set of concerns. And then waiver. I said that I thought that VARA was not bad on the waiver provision except for the very last part. The very last part of VARA says that one author's rights waives everybody's. That is very bad. So I have rewritten this in red to provide that a waiver of rights made by one author binds only that author so the other --, the co-authors, do not lose their attribution rights but in other words I think that that text is pretty good and in our imaginary statute could go in as such. Finally remedies. Again from VARA, VARA does not make registration a prerequisite either to bringing a claim or to damages, statutory damages for a violation of VARA. I would import that into our attribution right statute. I think that the primary relief would be injunctive relief. The author wants her name associated with the work and by and large this would be prospective but to the extent that there might be outstanding inventory to the extent we still have hard copies I think an appropriate remedy would include adding the author's name to those already produced but not yet distributed copies and as for damages I think it might be difficult to prove actual damages but statutory damages might be an appropriate component. How much those statutory damages should be is another discussion but I would be I think favorable to having some element of statutory damages and I think we have some time for discussion.
>> Yes, I want to start off with just a quick question about the Dastar case because I think that's something that people have mentioned as the linchpin of U.S. compliance in some sense. What would your view be of whether the Dastar case actually is a linchpin so at the time that we actually complied with the Berne Convention or said that we complied with the Berne Convention Dastar had not actually come down. Would you agree that at that time our moral rights protections were strong or would you believe that they were actually still somewhat weak?
>> I think when we ratified the Berne Convention it was possible to make a barely plausible argument that our patchwork which importantly included 43(a) suffice and I will say that Jack Kernochan and I wrote an article taking the position that the patchwork could be sufficient. Now I will also point out that we wrote that before the UK and other common law countries added explicit moral rights. One of the arguments was the United States doesn't need to have moral rights in the copyright law. What counts is whether you have a moral rights protecting result, it doesn't matter what the label is and I'm sympathetic to that point of view but a corollary to that was just look at the Brits. They don't have any kind of explicit moral rights. They barely have any moral rights at all and they're in the Berne Convention so if they can do it surely the United States can do it. That largely unspoken argument then became somewhat less persuasive when common law countries did start enacting explicit moral rights provisions so that's another element that perhaps has changed the way one evaluates the question between 1988 and 1989 and post Dastar.
>> And then just to follow up on the post Dastar points you had mentioned that some district courts are taking a broader reading of the Dastar decision. There is a debate in academics as to whether you should construe it broadly or narrowly. Can you kind of give a little bit more detail as to how lower courts are interpreting Dastar and whether that affects how we may use the Lanham Act for compliance with moral rights?
>> Okay well the first line of defense which crumbled quickly and Peter Yu alluded to it is that DayStar concerned a work in the public domain and you may recall Justice Scalia's colorful language about a mutant copyright law that the plaintiffs here were end running, the fact that they failed to renew the copyright in the motion picture and they shouldn't be allowed to get themselves a kind of de facto extended copyright by bringing the Lanham Act into service so the narrowest reading would be regardless of what the court said on its facts this was a case about a work in the public domain and it doesn't prejudge or determine the assessment of a false attribution or maybe even a non-attribution claim with respect to a work that is still under copyright. Now that didn't fly at all and I think it's pretty clear that it didn't fly at all because of what the court said about origin. A false designation of origin does not mean the intellectual origin of the work. The court was very clear about that. It means that as Peter said, I think it was Peter, that it means the physical origin, the producer, distributor of the physical goods, that's all that origin in the Lanham Act means. Well under that approach it doesn't matter whether it's a false designation of origin or a non-designation of origin. If origin doesn't mean intellectual origin then that kind of knocks the Lanham Act out as a source of attribution rights. The broader reading still is that some lower courts have attributed rather broad preemptive effect to Dastar to conclude that you can't try to work in attribution rights or false attribution claims under other theories of law so that part, the very broad interpretation of Dastar means that we don't have the Lanham Act as a source of attribution rights anymore and we might not have some other common law theories as a source of attribution rights and that wonderful patchwork that was evoked in 1988 and 1989 is looking like maybe two or three very ragged strips.
>> And with that I want to turn it over to the audience to see if we have any specific questions to Professor Ginsburg about how we might strengthen moral rights of attribution or whether we need to.
>> What I didn't hear in your talk about legislation was why we should have legislation implementing a right of attribution. Is it strictly because we agreed to in the Berne Convention or are there other reasons affecting the public interest, why the general public would be benefited by adopting this?
>> I suppose the first answer is we did assume an international obligation and in so doing Congress supposedly took the public interest into account. When we ratified the Berne Convention we thought that that was a good thing for the United States and the Berne Convention doesn't allow reservations so you can't say well the Berne Convention is a good thing except for Article 6bis or for that matter Article 18 which we did not initially implement either. That was the provision that requires states when they join to restore the copyright in works of foreign origin that are still in copyright in their countries of origin than if they are out of copyright in the United States they have to be --, their copyrights have to be restored and of course there were a certain number of works that fit that bill because they were published without a notice of copyright, they went straight into the public domain or their copyrights weren't renewed and so they went into the public domain after 28 years which is much too short under the Berne minimum period of protection or in some cases, in fact the Golan case itself concerned works which one they were published their country of origin was a country that was not a member of a copyright treaty with us but Article 18 says that when another country joins the Berne Union then their works have to get protected, so we had an international obligation enforceable through TRIPS to restore the copyright in Soviet works that had fallen into the public domain in the United States. Now Congress made the determination that passing the burden, ratifying the Berne Convention was a good thing not just for authors but for the public and also for the American economy as a whole because even back in the 1980s the ways we used to make money by making cars and steel and electronics we weren't doing that so much anymore but we were certainly creating and exporting an awful lot of intellectual content and so we had an interest beyond the perhaps parochial interest of authors in having very good international protection so I guess that would be my first answer to the question about whether attribution rights are in the public interest, I'd say at that highest level. I would say also that attribution rights are in the public interest in part for what some might consider to be consumer protection interests that the public has an interest in knowing who created this work and that the author obviously has an interest and that that interest is not simply a vanity interest. I think that the Constitution conceives of copyright as creating an environment that will encourage creativity and being recognized for your creation I think is very much part of that environment and so I would say that public interest is one that should be considered to be deeply rooted not only in our economic interest but in our polity.
>> Any other questions?
>> Hi, Carrie Devorah, Center for Copyright Integrity. I was very excited when you were speaking. I'm thinking oh awesome how is it nobody has gone after Google for doing exactly the violations you were talking about should not be done? I also wanted to raise a point about David Slater, the monkey photographer. I've gotten to know him. I would consider what David did in what he's explained to me as set design. He worked for weeks with a monkey to encourage the monkey to become familiar so just keep points on, a fact on point but Google, look what they've done. They have walked away with all of our works. I took a picture of a picture I just did, sent it out to a colleague of mine but that picture has now been taken from me. I'm not dead yet, I'm not life +70 so how is it that Google has escaped the liability of what you just so wonderfully described a liability existing for?
>> I think that question we go to economic rights as much as to attribution rights. On -
[ Inaudible Speaker ]
Let me --, get back to that on the monkey [laughter]. I think there have been --, I didn't mean to be flippant. There have been a number of variations of the story. Some have given the monkey more agency than others. Under the maximal monkey agency approach [laughter], up there with the Zika virus I think that that does not qualify.
However in the variations on the story where the photographer set the scene and all the monkey did was click the shutter there are a lot of cases actually not only in the U.S. but in other countries where it's exactly that scenario. The photographer has set the scene and somebody comes along and pushes the button and courts generally consider, that is the person who structured the image not the person who pushed the button who is the author of the work but this gets to the question fairly raised if we're going to have an attribution right we had better know who is an author and in many instances that's not going to be too difficult to figure out and in lots of instances there are indeed conventions about giving credit if one thinks about the Writers Guild agreements in such. The fact that at the margins it may be difficult to identify who is an author is not for me a reason to deny attribution rights altogether. On the contrary I think we need to work on coming up with a reasonable and implementable notion of authorship and I do think that digital media, CMI is not limited to digital media but digital media in fact offer a lot of opportunities for robust author identifying information.
>> Any other questions?
>> I was going to circle back to this in RMI but I'm curious when you were talking about the AFP v. Morel case and in connection with the CMI information there, do you favor a more broad interpretation or a more narrow one?
>> I think that the claim could be made out in the Morel case because what Agence France Presse did was to make the picture available for other news entities to then reproduce and communicate it so there you could show that they had reasonable grounds to know that there would be a downstream infringement but the facts don't always work out with the downstream infringement. You wouldn't have to worry about that if the removal of the attribution were itself an infringement which is what the WIPO copyright act says but then the question becomes can you fix that gap between the international norm and our implementation of that norm. Is it possible to fix that without legislation or would it be necessary to somehow work in the words attribution in order to close the gap? And I think it would be nice if one could come up with a creative way to close the gap without legislation because I'm not so sanguine about legislation but if we are going to have legislation that's a clear candidate and I invite people to be creative in thinking about how you can somehow interpret section 1202 to make it consistent with our international obligations and of course there there is no WTO action because the TRIPS Accord doesn't apply to the WIPO copyright treaties which came later.
>> I argued for AFP in the Morel case and my take is a little different on the case. First of all it was fascinating but the jury had no understanding at all about the DMCA and I mean that was very clear. At the early part of it there was no Morel name on any of the artworks. By way of background he posted these, initially it was thought that he was a citizen journalist. Somebody stole them, a guy named Suero so AFP initially takes them off Suero's site and lists it giving Suero credit. A few hours later they find out it was Morel and they always gave Morel credit. He was always in the tag. It said AFP Morel or AFP Getty, Morel as part of the distribution. There was never any time that his name was removed because his name wasn't on anything. It wasn't on the website. It wasn't on his website either so there was never any removal. There was never any distribution by AFP or its subscribers or Getty without attribution to Morel. What the jury seemed to have found and again it was convoluted because --, well we don't have to get that into it, but it was that they associated, it said AFP, Getty, Morel which is standard media information for a source distributor and photographer and since he wasn't affiliated it seemed it was that misassociation that was the basis of the very small DMCA award which was kind of odd for us because there was never any distribution and the court also specifically did not --, they ruled against the argument that they originally made because they originally said this was going to be a $180 million dollar case. We could see the DMCA going downstream and the court ruled not, that the downstream users were not going to be counted as part of the DMCA damages.
>> I think that your account of the facts illustrates why it would be a really good idea to develop standards or best practices that the Copyright Office might endorse for what is copyright management information.
>> I think we have time for one last question if we have any. Well I think we're just one minute out. I guess my last question is do you have any predictions? You said you weren't that sanguine about the possibility of legislation.
>> Well I think some of this is in your hands [laughter] and so I want to be sanguine about what the Copyright Office can do because I think actually there's quite a lot that the Copyright Office can do both enforcibly and certainly morally and I'm quite serious --, I think I said there were two takeaways, one is that Article 10(3) of the Berne Convention imposes an enforceable through the WTO obligation to credit the author in the case of the quotation right and that many, much of what we consider fair use would fit within the quotation right. And therefore take away number two that court should start developing as part of 107(1) to take into account the attribution to the author if it was reasonable to attribute to the author and then the copyright office can tell us what's reasonable when it comes to author attribution.
>> Well I want to take this time once again to thank Professor Jane Ginsburg for her talk.
[ Applause ]
>> This has been a presentation of the Library of Congress. Visit us at loc.gov.
>> From the Library of Congress in Washington, D.C.
>> Maria A. Palante: For those of you just joining us we had an incredibly stimulating morning this morning and a wonderful keynote, and this afternoon we're going to begin to hear from creators and before I say that I just want to also again thank the Center for the Protection of Intellectual Property. And over here you'll see very intelligent energetic looking students, and I think, if you don't mind I think they're our future and I'd like to recognize them for helping us to put this on today.
[ Applause ]
I also want to make a point to thank John Conyers who is the Ranking Member of the House Judiciary Committee. When I testified before the committee in favor of comprehensive review of copyright law, the Copyright Office made the point that no such review would be complete without looking at moral rights. And John Conyers who, has been a lifelong advocate of authors and artists, asked us formally to commence such a study. So as we said this morning, this symposia cosponsored with George Mason Law School is the beginning of that public dialogue. And with that I'd like to turn it over to Kim Isbell who is Senior Counsel in our Department of Policy and International Affairs.
>> Kim Isbell: Thanks Maria. You know, as Maria just alluded to one of the key things about this panel that I think is really interesting is it's the first opportunity to really hear from the artists themselves. You know this morning, we heard from a lot of lawyers talking about what moral rights the United States does or doesn't recognize, how you could assert more rights under various provisions of U.S. law and then the very interesting keynote by Professor Ginsberg talking about what she views as a very important moral right, the right of attribution and how we could go about codifying it. But this panel is really focused on: what do artists themselves think? How do moral rights impact their day to day work? How do they impact them both professionally and personally? Which moral rights do they care about? Which moral rights make their lives easier or more difficult? And so for that reason, I'm going to take a slightly different approach to this panel than we have in the prior panels. I'm not going to start off asking our panelists a bunch of questions. Instead I want to give each of them about five minutes to really talk to you from their own perspective as to what moral rights and what this symposium mean to them and what they think should be the key takeaways as the Copyright Office is going into a larger study of the issue of moral rights. Before I do that though I am just quickly going to introduce our panel, and then I'm going to turn the microphone over to Melvin. Our first speaker is Melvin Gibbs. He's a musician, bassist, composer, general musician, Renaissance man. He's also the president of the Content Creators Coalition, who is really out there advocating for artists in the area of copyright and in other areas. And so we are very glad he could come down from New York to join us. Next to him is David Lowery. He's a songwriter. He's a recording artist. You've probably heard of some of his bands. He was in Cracker and Camper Van Beethoven, and he also helped found Pitch-A-Tent Records. He's been a frequent speaker for artists rights in many of these discussions that most of us participate in. He's a very strong advocate for the rights of composers and the rights of recording artists in the United States. Next to him is Yoko Miyashita [laughter]. Sorry I apologize. She's Senior Vice President and General Counsel at Getty Images. She came to us all the way from Seattle to join us today, so we are very glad she could be here. Next to her is Professor Sean O'Connor. He is the Boeing International Professor at the University of Washington Law School. We actually have a number of Seattleites on the panel today. And he's done extensive research in the area of moral rights and copyright. And finally last, but definitely not least, is Scott Turow. He is an attorney and an author. He's written nine best-selling books and has also been very active in these issues and so I personally am really looking forward to hearing from all our panelists. And so with that I'm going to turn it over to Melvin.
>> Melvin Gibbs: Good afternoon. Howdy [laughter]. I was about to use Kimberly but is it more --, should I be saying Ms. IsBell in this context?
>> Kimberely: Kimberly is fine. [launghter]
>> Melvin: All right so I'm going to say Kimberly so you know I'm trying to get with the protocol here. Anyway as Kimberly said earlier there was a lot of talk about the law and intricacies of the law. I'm a musician. We think about the law as part of a more holistic way we think about the world. For me personally, in addition to thinking about the law when I have to think about it I think about what my music means philosophically and what it means economically. And once I start thinking about music, you know you have to start thinking about how you translate it, and then it becomes a question of thinking about metaphors. And as musicians we're basically stuck in two metaphors. We are stuck in a metaphor where we are workers; we are making a musical work. Or we are employees creating a product. For me, neither one of those things actually works. I actually think of myself as part of a community and creating for a community. And in the context of this society, the goal seems to be dissemination of creativity, getting it out to as many people as possible. And the question becomes, for somebody like me who is creative, is how am I going to make that process work. Leaving aside the kind of inherent you know heteronormative male aspect of the word dissemination you have the question of [laughter], you have the question of what does that mean? Dissemination is a process that starts from an individual to another individual. So inherently for the dissemination process to work, the individual has to be recognized. So how that works in the context of a community is very simple. You know who the guy down the street is who does X, Y or Z. For us as musicians, there might be a guy-- for me there was literally the man who lived next door who started me off on music. The question becomes I needed to know who this person was. In the context of a community, of course you're going to know that, but in the context of 2016 when we have aggregated groups of data it becomes difficult to impossible to know who these individuals are unless there is some mechanism specifically built to make that happen. So looking at the idea of moral rights in the context of this society today I would say to have this balance between community and individual is actually more important than ever. To have a really large scale dissemination of creativity the individual creators have to be recognized. Alright? Somebody asked why is the law necessary in the earlier panel. To answer that I'll give an experience. I've been consulting at a startup for the past few months, almost a year now, and one of the things I've learned is that nothing gets built at a startup unless it is absolutely necessary for it to exist. And the reasons that it's necessary to exist are basically only two. It has to be a business reason or it has to be a legal or regulatory reason. It will not get built because I want it to. There has to be some affirmative reason that the tech community has to do this. So that's my short answer to that. For us attribution that is our currency. I don't exist if people don't know who I am and I mean that in the most literal sense of I don't eat. So every time something goes out that I've participated in that I don't get attribution for it affects my family. And how that affects the community is that the less I am able to create the less I'm able to help other people create. And the less the community of --, it shrinks the community of artists which will eventually shrink the creativity of this country as a whole.
I don't have a watch on, I don't know how I'm going here.
Kimberely: >> One more minute.
>> Melvin: Okay.
There is a bit of an overlap between economic use and moral use, which I guess we'll get into later. But I can speak as somebody who was mentored by a lot of the older jazz musicians in New York City that you cannot really separate them. There are a lot of things that --, attribution and integrity are both important. And for us as musicians, it's a slightly different issue because we are performers. It's not like in a book where you have one version of the book. We play a song today, we'll play it again tomorrow. Each performance is unique and each performance can be disseminated on its own. So I think there's a different --, there's room for a different way of thinking about this idea that integrity will somehow hinder the process of remix culture. I think that this is something we'll examine further but I just wanted to touch on that right now.
>> Kimberely: Okay, thank you Melvin. David Lowery.
>> David Lowery: Thank you Melvin. You know about 23 years ago I had a song released, and it started to become popular on radio. One day I get a call from the senior vice president of promotions at the record label, and he basically says "that song, you know that song's not about being stoned, right?" [laughter] And I'm like, "of course it's about being stoned Michael," but he kept saying it to me and then finally I was like, "oh is there a problem?" He goes "yeah, I got this letter I want you to sign and I need to fax it to a few radio stations." So despite the fact that I signed a letter that said the song "Low," which has a chorus "hey, hey, hey like being stoned" [laughter] is about being stoned. Despite the fact that I essentially signed a letter that said that it didn't, it is. And I guess in the world of alternative rock and rock radio songs about being stoned there are a couple of other people who have a few tracks that basically come out and say that and one of them of course is Tom Petty. So about the time that we were first dealing with digital distribution-- at first involuntarily by the likes of Napster and Kazaa and Grokster and things like that-- somebody, probably because they were stoned, mislabeled my song "Low" as being a Tom Petty song called "Like Being Stoned .MP3" or "Tom Petty - Low - 106" I guess 108 must have been an MP3 disc that they ripped it from. And for the next six or seven years I had this ongoing battle to kind of correct this misrepresentation that that was actually a Tom Petty song to the point where --, what's the name of this website? And it's still out there. If you look it up on LastFM it says it's a Tom Petty song. Picture of Tom Petty there. There's a Wikia called misattributed and the Wikia misattributed song that's one of the first examples of a song being misattributed to artists. So you've got to think about this. So my point, and I think there's a lot of people here that feel the same way, is that attribution, you can't really separate attribution from the economic rights. I mean it's the same thing. Now we can decide what we are going to do about that, because the last thing I want is a DMCA loophole that can drive like a truck or several thousand trucks through. But it is definitely --, to look at attribution as separate from an economic right is ridiculous, because A) one, you know all those people are freely downloading those songs, well maybe, maybe they would have come to the concert, but they would have gone to a Tom Petty concert [laughter]. Also the fact is is when you're a performer you know you build up a certain brand name on the basis of your previous album so even before your album comes out it gets a value, and economic value. Because it's going to be based on the popularity of the songs before that more people are going to listen to it, maybe buy it, get licensed in films. I mean it's really, it's silly that it's not an economic right or that we would even think that it's not an economic right. I guess the other thing is that, I find there's a lot of --, you have this problem built into our system for songwriters. Like my example is a funny example as a performer, you know this. But when you look at songwriters they are almost never attributed in the digital world. I mean I guess you could dig around. I was using a popular streaming service and they do have a lyrics plug-in that you can load into the program and then you click on lyrics for one of my songs. It was being performed by another band but this was the song I wrote and I looked at the lyrics and stuff and I was like that's great, there's lyrics and that's attributed to the wrong people as a writer. So I guess that's my point. It's an economic issue, very strongly.
>> Kimberely: Okay, thank you. Now to go to Yoko to give us sort of the business perspective on this.
>> Yoko Miyashita: You know it's great to follow Melvin and David. Thank you for that context because it definitely touches on a number of things that we see in my industry. So just a little background on Getty Images. We represent close to 200,000 individual photographers as well as having a staff of 150 staff photographers. So we are both stewards and distributors of third-party content as well as owners and generators of our own content.I was thinking about this as you were talking about these issues, and I've been with Getty for about 11 years and I would split those years as sort of pre-viral, pre-social to the current state. And I would look at sort of our activities particularly on the enforcement side as seeing instances of uses and policing them, and realizing with online platforms with the DMCA loopholes that that just simply became untenable. So Getty took --, really looked at this as a business issue because when the genie is out of the bottle on social media it's out. There is no stuffing it back in. And the big issue we encounter here, particularly on images, is what I call the right-click-copy-upload paradigm. When that happens, the metadata that we have hired people to apply all of the author's information, the copyright information, all of those attributes that would ordinarily travel with an image get stripped. So what happens? That image gets orphaned. That information you would have had about that author not only has that been infringed, not only has your economic right there been messed with, it's now been disconnected from the key information that tells you who actually created that image, who is the author behind that. So it's an issue that we have looked at from a business perspective and said, "all right this is happening." You can send all the takedown notices in the world, and you will never solve this issue. So what have we done as a company is really looked at ways of distributing content to actually bring attribution back. How do you leverage this innate human need to share images? Well you do that by offering embed. In May 2014, we launched an offering through our website for free embed use for noncommercial purposes.
We hai spent years pursuing these small nonprofit organization school projects and really that is a terrible PR campaign. Really whacking the schoolteachers over the head with a C&D and a lawsuit or demand for payment really not great for company PR, not great for us. So what did we say? We opened up 90 plus percent of our collections, and said if you want to use our content for noncommercial use great. Here's our embed and what does it too? It includes a small watermark as well as attribution. Give the creators credit for what they've done. And it also links back to our site, so if someone actually likes that picture they can go through then, make their way back to the Getty Images site, explore more images by a particular photographer. Soon after embed we've launched social sharing. So if you now go to the Getty Images website and see a picture you like we encourage you to share it but it will be shared with attribution, a link back wherever those platforms allow us. So you do again --, can correlate that back to the person who created it. I'm not saying this is the ideal solution but this is the solution that we currently have in the context of where the legal framework stands. If it's going to be shared we want it to be shared with attribution, with a possible potential for people to find more images from these creators.
The other, you know the other thing that one of our affiliates, Getty Images acquired a technology in 2011. It was the frontrunner in image recognition software. They do digital fingerprinting and essentially help you identify images on the internet. You can see the obvious use cases for pursuing infringements. But what we've done is really collected one of the largest indices of online imagery. So a fantastic solution for orphan works, but also just an open API. So the technology is out there to help platforms, to help companies, to help anyone who is looking figure out who actually created an image, who actually owns the copyright, where it's available for licensing. This technology exists. It's out there. We offer it. But there needs to be an impetus to drive uptake of these kinds of available technologies. We know they exist. They are underutilized across the industry but again, that is a process to reattach this attribution, to reattach the metadata, to reattach all of these key attributes that go directly into the economic viability of creative works. I wanted to touch on a point you made, David, about to have --, it's not just knowing who the author is so you can search. This is all driven in the platform space by algorithms. If your name is not showing up with that song and is not being attributed to you, everything else that's driving the algorithms that will drive traffic back to you or discovery of your content, those connections are being cut off. So I do see these as absolutely interrelated and you cannot separate the two. I think that's really it for me. Thank you.
>> Sean O'Connor: Thanks, okay, I'm actually going to use a timer because I'll just ramble on too long. First I want to clarify that I'm not really a moral rights expert. I know that's shocking and I probably shouldn't be up here. I always joke that I'm a jack of all trades, master of none. I was a singer/songwriter for a long time but not as good as these gentlemen. I recorded some stuff, did get some airplay, but I was one of those guys was better as a bar band performer and would go to the studio, and it was pretty good in the studio the stuff I wrote but not good enough to quite get me there. So after that I went and got a masters in philosophy. I was a bartender, parked cars, you know did every stupid job you could imagine and then ultimately ended up in law school for various reasons. And through the magic of academic tenure I've held a job for like 13 years now which is really quite good for me. But --, thank you, I know, my parents are still shocked that that's happening. But, so, I think the only reason I'm here is kind of perhaps a synthesizer, looking at both the creator side because I have experience--that I know what it takes not only to write songs but also to get them into the studio. Again I wasn't good at it but I understood the production process. What I liked about what Melvin was saying was distinguishing between musicians in their performance capacity and in their recording capacity. And so I think with moral rights, and what I just want to address for a couple of minutes here, is that the key thing is when we're focused on musicians and other creators when they are creating what I call artifacts, a particular finished work, a recorded song, a book that's going to be published, an artwork that's going to be released. And then the key is--and it's related to a project I'm working on right now funded by CPIP actuall--looking at arguing that copyright should perhaps be viewed is as much an incentive for publication for making a public commitment to that particular vision of a creative work, as it is an incentive for creativity and the other things we normally say. Why? Well because if you talk to a bunch of creators, and now Melvin and David will correct me quickly on this, but I don't think, you guys don't write songs just because there's copyright, you don't create --, well maybe you do, I don't know. So in other words if you say oh my gosh I am not going to become a songwriter if there were not copyright?
>> David: Yeah but I don't think you do album eight or nine.
>> Sean: True, right [laughter], so there's a role for it, exactly. And then the question becomes how do you get it all financed? But the point here is that I think a lot of people now realize that is copyright as only an incentive to create probably doesn't tell the whole story. It's a big part of the story but it's not the complete story. And so if you look at the history of the term publication going back to Roman period "publicari," it was making a public commitment. And so what I think has become invisible to us in the social media age where people blur the line between public and private. We tweet everything out. We Instagram everything out. Snapchat everything out. But think about if you are a creator, and this is true for a creative artists and even for us wonky academics, when you finally say, and I'm looking at the journal students over there, okay you guys, and I have stuff I've published with them, they always send me, "is it final? Are you going to give us the sign off? Can we release, can we publish this now?" That's a fraught moment because if I say something wrong in there, I didn't catch a typo, it comes back to haunt me. And so now on the performance side, on the improv side, sometimes the rough edges around it can be exactly what you want. But in the finished artifact side it's often not what you want. You're trying to get a very particular thing. So what does this mean for moral rights? Well, first moral rights is important because we angst a lot about is it good enough to be published, to be publicly released? And second, without getting too maudlin, but in the world we live in today you have a lot of potential risk and liability for things you publicly put out there as creators. We don't have to give specific examples, but just think about that in the world today. And so the notion of integrity. What if somebody takes my carefully constructed "here's what I really meant to put out there" and they change it and my name is still on it? And now suddenly that could get me just professional problems, or it could get me physical harm kind of problems. Can't I then get my name taken off it? Or can't I just withdraw the work entirely if I realize that's not what I want to publicly commit to anymore? Okay, so that's my main point. Second point is that I think, and I like that Professor Ginsberg was starting to open up that door and talk about work-made-for-hire, because that's going to be I think one of the biggest problems for meshing in or bringing in a full moral right system into the U.S. copyright system. Our work made for hire is based on the economic basis of our copyright system, so it means the economic employer can be the author for purposes of copyright statute. But there's another sense of work-made-for-hire where you have --, and this goes back to actually continental precedents going back into the Renaissance period where you have the great artiste who directs people and usually then his, but it could be her studio, and they actually implement. They execute on things. So you know we know the case is about how you decide who is an author and who is not but that's going to become I think incredibly important as you think about then bringing in a fuller moral right system if that's something you want to do. With that I'll turn it over to Scott.
>> Scott Turow: Great. Well thank you all. My acquaintance with moral rights began what is now a long time ago when I was thrilled to get a draft of a movie contract for the rights to "Presumed Innocent" and my life had gone through an extraordinary transformation. I had written "Presumed Innocent" on the morning commuter train and finished it in my basement and all of a sudden, literally, I was that proverbial person in the creative world who gets struck by lightning. And in the process the movie rights to the book were purchased. A draft contract arrives and of course it says that among the rights I am selling are my right to make a claim based on droit morale, and I'm sure people are fainting all over the room of my French accent [laughter], or moral rights. So I called my lawyer and I said, "well what are moral rights?" And he said, "well it has got nothing to do with you, you're an American."
[ Laughter ]
But I've always been conscious of the concept just because I've been through law school. I never took a copyright class, but the notion just because of the term appeal to me. And there is --, we recognize creative work as standing on some kind of different platform than other products in the marketplace, because of the intimacy of the creative act. And for lack of any other term, artists traditionally are believed to have put a little bit of their soul into whatever they create, whether it's what they paint or the songs they compose, the sculptures they make or for artists and authors the productions that come from them. And I think we do have the right to assert that there is a kind of specialness in creative work and that is recognized in terms of moral rights. Everybody here has talked generally about the right of attribution. I sit here on what is a sad day for the Authors Guild of which I was once president. Our long-running fight with Google over the Google Books project is officially over today. The Supreme Court refused to grant cert in the case. And I doubt there are any people in the room who need a long-winded explanation of what was involved in the Google Books case. And it's certainly true that our opposition was fundamentally economic. The notion that a large corporate entity could decide on its own to take and copy an authors work, not change a single word of it, offer no new expression and still make the entire work available through selective display of so-called snippets seemed fundamentally wrong. But we've lost that fight. But the moral rights issues still remain in that discussion. And just by way of example, at one point we had reached a settlement with Google which was one of those situations where the Justice Department came in and disagreed with both sides. And I still, of course, disagree with the Justice Department about this. But we found in our own membership substantial opposition to the settlement. Not overriding, and what were they objecting to? They believed, they didn't like the idea of Google coming in and just taking their work. They didn't want it displayed on Google. And even though we argued that the settlement in fact would give them the right to opt out and withdraw their work, they found it fundamentally offensive. Now songwriters don't exist in that world. They have a compulsory licensing system. Other people of course, objected to Google books because of the right of integrity. They didn't like the idea that there was this robot being created that would deal with their books selectively and choose snippets based on certain words. And certainly the right to control publication of your work is implicated in this kind of wholesale use and display. Rights of attribution of course are important to authors too. It's rare to steal an entire novel and have somebody put his or her name on it. But poets and essayists are in this world of rampant plagiarism of course, often exposed to that. But all of these concepts seem to me to remain very much relevant to the discussion of the author's place in the world, too.
>>Kimberley: Okay, thank you. So I think I'm hearing a couple of different themes throughout this panel. One is that it's very hard to separate the concept of moral rights from the concept of economic rights, especially in situations where your reputation has a lot to do with the economic value of what you're producing. And I'm also hearing that there seems to be a lot of consensus here that attribution is a relatively important moral right for creators and for authors. But what I thought was interesting and we first started getting into with Sean's discussion, is sort of the more reputational and other sort of personal importance of moral rights. And so I would like to hear a little bit more from some of the panelists, if they'd like to speak on it, about putting aside economic rights--not that you can, you have to eat obviously economic rights are important--but how do things like, for example Tom Petty being listed as the author of your song, sort of impact you on a more reputational or personal level? Anyone want to take that on?
>> David: Well I'll say that a lot of people thought that we were playing a cover after that, which lowered our sort of status in some weird way. So I mean that was one of the things. But a lot of people object to the uses of their songs in certain kinds of commercials and things like that, and I know this is like rights of publicity and they crossed into other realms. I'm pretty relaxed about all of that. I mean if the San Francisco Giants started using one of my songs I'd have a problem with that. [laughter] -
>> Kimberely: What about politicians?
>> David: Well generally if they stay away from homophobia, racism, certain key things, I actually, we have very diverse political views in both of our bands so we kind of let more use of that happened than most bands. Am I being neutral enough?
>> Kimberley: Very middle of the road -
>> David: Yes, so but that's an issue --, I don't know maybe -
>> Melvin: Well I mean I think it's an odd-
>> David: I'm a collective for musicians so -
>> Melvin: I'm more speaking for friends of mine, I mean as far as going back to thinking, I hate to bring it back to attribution even though you're trying to take it somewhere else. [laughter] But a bunch of friends of mine have been sampled multiple times, and it would be very nice for people to know that they are the actual people that are playing on that record, on the original songs. It would be nice for people to know who the people who did the original songs were in a more comprehensive way simply because, thinking particularly of a friend of mine who played on an Edwin Birdsong song that Daft Punk sample, those guys are all still around. They could have just as easily hired those guys to come play the song again and it would've been better for everybody. So it bleeds into the whole "what is creative and what isn't." Because to me in 2016 a lot of these things that people default to as creativity tactics, they default to because a certain legal mechanism was set up that drove things down a road that was the road that it went down because that was the one that was the clear one. I think if some other paths are cleared up, we'll see different kinds of creativity and we'll see different kinds of income generation. As far as effect on reputation, yes it's interesting because now I'm thinking of some other people I know who actually are in a position to be able to control their catalogs. And they've been pretty adamant about policing use and making sure that people, hip-hop songs that they don't approve of, their music doesn't get on them. And I can also think of quite a few people as David alluded it goes into --, it starts to bleed into right of publicity, but I know many people who have refused to let their songs be used in commercials for example. And I know that that's an issue now for quite a few friends of mine because of YouTube and because of the fact that now they spent their whole career saying no to commercials, and now whenever a commercial pops up they have no control over it, which is off-topic to this conversation. But it's the basic idea of yes you do spend --, if your career was built on "okay you have a certain level of integrity" and now everybody--that's being assaulted--then your reason, the reason that people respected you as an artist starts to go away and it makes you less valuable to your people and less valuable to yourself.
>> Sean: So I would add--and again maybe I'm just off base because again I'm not as talented as these guys so my perspective, it might be why I never became a famous musician--but so first, one as a small side note about knowing where the samples come from and just to plug hometown radio stations KEXP did a deconstruction of Paul's Boutique where they went through, they took an entire programming day and went through the songs and pulled out and played the original entire song that was sampled and then gave the credit, maybe not to every musician on the array, but they got as close as you could get so that's incredibly important. That was cool to happen. What I think I was trying to get at though with this kind of final release of the artifact and not is a lot of what I think you both are talking about with integrity is thinking about using your song for political reasons, things like that, but what I'm really trying to get at is, you're still I think perhaps thinking about the final release that you authorize and then what happens with it after that. So let me give a hypothetical: You've signed over all your rights to a label, not to make the label the bad guy or anything but you've signed over --, no, no really I'm really not trying to do that I'm just saying for the hypothetical--you gave all your rights away. You had a bunch of stuff that you're in the studio wasn't quite up to par that you would have released and now they say the contract, you're doing something else, and they say okay "we're going to release from the archives," and it's a bunch of stuff you're like, "I never would have released that," so that's in some ways what I'm trying to get at. What you think about that?
>> Melvin: Well I mean just on the never released I mean I was known for back in the day for being the guy who would derail a contract over those kinds of things so for me I mean I think in my whole career I've definitely done less than five works for hire and I think it's two or three maximum. I just don't do it, that's me personally. But it's interesting because I kind of wanted to leave that alone but since we're coming back to it it's the copyright versus moral rights thing. Copyright is for everybody else but moral rights is for us. When I make something it's mine until you know about it.
>> Sean: We would hope.
>> Melvin: From the standpoint of an artist it is a piece of --, it's literally a piece of property, I mean it becomes virtual property once it's printed but when I'm thinking about it it's mine. So it's kind of two different conversations. I mean to me when we're talking about copyright were talking about okay what happens when everybody else starts to know about it. But the real basic thing that is called moral rights, to me that's --, we get, that's kind of intrinsic and we make an agreement with the rest of you all that we are going to give some of those up so you all can hear it. But at the end of the day, we try to figure out ways to put it back in the contract, some guys like me who just won't do work-for-hire. Everybody's not as militant about it as I am and that's one reason I don't work in LA, blah blah blah. [laughter] I don't so. But-- it's something, it definitely impacts the creativity of this country. I've just got to leave it at that.
>> Sean: So one last thing to close the loop on that. So that for me is Statute of Anne and our earlier copyright act where there was the stronger public/private divide. The idea was you create something, you can control it completely until it is ready to be released because, thank you Melvin, and perhaps David agrees too, it's very personal and until that thing is ready you do not want it getting out there.
>> Kimberely: So I actually have a question for Yoko. Are these types of issues ones that are important to the photographers that Getty Images works with? Do you help them enforce rights of attribution in addition to, obviously, the initiatives that Getty has come up with to try to embed and provide for social sharing, but are these types of concerns like "I really don't want my photograph appearing on this type of website or in this type of concept."?
>> Yoko: The integrity issues are really interesting particularly because we really sit and broker the relationship between the artists and essentially the people licensing or purchasing content. And we handle it contractually, as you would imagine, but the stock photography industry is built on "somebody takes your picture and customizes it and modifies it and uses it in a way that suits their particular need" eliminating the need to shoot custom content. But what comes with that is obviously these absolutely human personal decisions and opinions and thoughts about what is and is not acceptable. We're pretty clear about those conversations with our contributing photographers around you know we asked you really aren't able to exercise your moral rights with respect to particular uses. Yes, we have mechanisms to say okay no use in tobacco, no use in alcohol. We have the ability and the means to honor those types of restrictions but once you really put it out into the distribution sort of ecosystem there is this understood exchange, a contractual exchange around what you can or can't control. And notwithstanding sort of an open dialogue and transparency about that you just never know what's really going to hit you and what's quite personal. And we've seen some really interesting issues come up, and we do have to deal with those on a one-off basis and try to find that middle ground. And sometimes that means that photographer wants to pull content. But if a campaign is run, a campaign is run. So you do see those and we do sort of stand in the middle again trying to broker what is the best solution for each side here. And I think it's really --, people are so creative you just can never know what they're going to come out with, and it may be absolutely offensive to some, it may not be. I mean it is sort of what makes it interesting. But again to that private/public, we just sort of wait in the middle and see what happens. But what I'll go back to is really I do think technology has solutions to offer in the space that have yet to be really fully explored. And when we talk about control and when I think about online it really truly is the reflection of those control mechanisms within the 1s and 0s. So I'm not sure that answers that question, Kim.
>> Kimberley: So does anyone else on the panel have thoughts about sort of ways to manage these issues about solutions, or is it just a problem that is inherent in the nature of internet distribution?
>> David: Well I mean I feel like sometimes we frame the whole question wrong. Like we are sort of worrying about the rights of like a group of consumers or an industry or a preferred technology. But rights only vest in the individual. And I don't think me asserting my rights if it breaks or wrecks a certain technology, then it wasn't a good enough technology in the first place and it should die [laughter]. I mean think about what we lose? How did we get this turned around so backwards that we have to pick winners and losers in the technology world? If the internet is the most wonderful thing ever it should be able to withstand me asserting my moral rights. Right?
>>Melvin: Well I mean the thing I always say is that this idea that information should be free theoretically also applies to your bank information. But nobody has any problem with having their bank information locked down. So it becomes a question of what --, going back to what I said earlier what people want to build and what people need to build. It's not theoretically as Yoko said earlier, I mean her pictures go up with the metadata on and then magically the metadata disappears so the fact that that happens is because there was nothing built -
>> Yoko: We allowed it to happen -
>> Melvin: To allow it to remain. Or you know I don't want to put it the other way but you know the implication is there. So I think as I said earlier there are going to have to be some affirmative forcing of people's hands to enforce community, unfortunately. Because people are just going to build according to what they can get away with building.
>> Kimberely: So Scott you've been kind of quiet. Do you have any concluding thoughts before we go to audience questions?
>> Scott: Again I'm sitting here thinking about all of these issues as they apply to authors, and of course, you know our problems have to do with theft, piracy, which is I'm sure a problem across the board. And I'm also thinking about the fact that it would probably behoove us, those who try to be author's representatives as well as authors, to explain this in the personal terms, which I think moral rights implicate and the way Melvin's been talking about it, that you know yes it's property.
You're stealing property but it's property plus. Creative work always has been and moral rights recognizes that plus aspect to creative work. And I think it's important because it's not just being ripped off by the pirate it's the personal insult that goes with it. Because look my books are in the library. People can go read them for free, and I love that. But that's because I chose to participate in that system and I didn't choose to participate in a system where somebody else is going to take control of my work.
>> Kimberely: Okay so we have about 10 minutes for audience questions.
>> Audience: I have a question for Scott. How do you feel about fan fiction?
>> Scott: You know I think it's pretty interesting, personally, and you know you can't deal with this globally. It depends on exactly what is being done and what exactly is being appropriated and then what kind of use gets made of it. But what I like about the moral rights discussion is that it involves us in discussing the spiritual element of creative work. I know when I write something that it's going to be meaningful, I hope, to an audience and that they are going to take it in and make use of that imaginative experience in their own way. So fan fiction is part of that process. Again, it's complicated and it becomes particularly complicated if somebody is trying to make economic use of something that I want to control. But you know the notion of it it actually does appeal to me.
>> Melvin: I want to just kind of tag onto Scott's comments a little bit. I mean it seems people have to remember that we all started off learning, and we all started off copying other people. Creative people in general are not against emulation. We're not against remix. We're not against any of that. What we are against is this distance that's been put in between us and the community of people who would want to emulate us. You know it's like the person who told me how to play bass, I learned, I was copying him but then I was going to his house every week. The people that I was listening to their records, there was a relationship beyond just okay there's a website and the website is scraping my data. And I think that to solve that is--we kind of have to go backwards. And that's why I think the moral rights conversation is actually applicable in this era.
>> Audience: Question for David and Melvin, as I'm sure you know Section 115 of the Copyright Act provides for a compulsory license that once you've written a song that anyone else without your permission can go ahead and record a cover version. Do you like that? Does it bother you? Do you think it bothers most songwriters, composers?
>> Melvin: We are about to go all Worldwide Wrestling Federation with me and [laughter]. It's two things that don't go together. I mean I am of two minds over this. I mean our organization is pro-compulsory license. The reason we are pro-compulsory license--but there is a very strong caveat with that, which is from our and the issue is that there has to be fair market rate paid when a piece of our creativity is used. The reason I can support that is because as I was saying earlier we all start off learning from other people. And for me, balanced in the context of American culture, I hate to bring that up, I hate to separate, I feel that it allows for creativity. Having said that, I 100% understand. I'm 100% for autonomy. And in a perfect universe, I think that I would probably go a different way, but with the laws that we have now and the way this country is structured, our organization feels that compulsory is what we would support.
>> David: What was the section of that act [laughter]? I mean I feel pretty much the same way Melvin does. I mean I think people forget though you can cover a song in a venue and it's covered by a blanket license and in theory that whole process was--until the DOJ stepped in--it largely took place in the private market. I see that there are other countries that don't have compulsory licenses, but that have private market solutions or free market more or less solutions to trying to license compulsories for covers and stuff like that. The problem with the compulsory licenses is the economic problem. I think most people don't mind having their songs covered. So I'm against the compulsory license because it's essentially a subsidy for --, mostly because it ends up being a subsidy for winners the government has picked in advance, technology companies, even large media companies previously. So I would rather not have it.
>> Kimberely: Okay I think this is going to be our last question.
>> Jane Ginsburg: Thanks, I'd like to ask you the question that I was asked at the end of my talk before lunch, which is, you've spoken eloquently about what moral rights mean for you but how is that in the public interest?
>> David: I don't know if --, moral rights how is it in the public interest?
>> Jane: So the question that I was asked at the end of my talk this is very nice all the good things to say about attribution rights but what's in it for the public? The implication of the question being that there is an opposition between the interest of the author in being recognized and the economic benefits that might flow from that as well as the psychological benefits, but to the extent that attribution rights might make the dissemination of the work more difficult because you get bogged down in trying to find out who is the author and identify the author so we have less dissemination of the work to the public. What's the argument from the author, as an author? I gave the law professor answer [laughter] -
>> [Name]: Okay, pretty good answer.
>> Jane: What as authors can you say about why recognizing you as the creators of your work, why is that good for the public in general?
>> Can I take a quick swipe at that one? I believe that all of the rules and laws we have are aimed at stimulating creative activity. And if your work can be taken without attribution, it, to some, is going to be a disincentive to doing it. And again you know as somebody who's privileged to have wide readership, and who doesn't pass a day without getting fan mail, you know I feel blessed by that, by the relationship that I've entered into with all of those people. And if you told me--leaving aside the incredible good fortune financially that I've also enjoyed--that that could be taken away from me because attribution would no longer be required, that would be a huge loss. It would change the meaning of authorship and I'm sure for many authors and other creators that it's a disincentive. If you're saying that there are certain mishaps in the internet world that we all know about where attribution gets lost that's one thing, but if you're saying that attribution in general is no longer going to be a right that we value I truly believe that you have diminished the glory of authorship.
>> Sean: I'll take a slightly different crack if I could at that which is I agree with that, but I also think that what it gets you is it gets you that public sphere, that public discourse. And that's what I was trying to really hone in on today, is that we had at times in the past, as Professor Ginsburg knows, that with a lot of scientific societies going back into the early scientific revolution, and yes copyright was important on the science side not just creative arts, it was a lot of manuscript culture of things being circulated privately and partly because people weren't ready to take that stand and they needed some other incentives to do it. So what does moral rights and attribution gets you? Well it's what copyright gets you as well. It gets people putting their stuff out there publicly releasing it not necessarily free economically, but putting it out there so it could be a robust public discourse.
>> Melvin: I would tag onto that I mean going somewhere that I wouldn't rarely go in public, going a little Darwinian. I think that in attribution you might actually have a situation where the best people win. I mean I talked to a couple of friends of mine who were professional ghostwriters. Nobody really wanted to share a song so I'm just going to have to riff one of my own on this but ghostwriting is not a new thing but who knows, who knows if the person who actually was painting for Rembrandt maybe that's the person who should have been famous. Because we don't have attribution we'll never really know. I think, and in the context of the music business, the way the music business is in 2016, I know that a lot of people go uncredited that are propping up a lot of other people's careers and I think that it would be better for the people of the world if some of these talented people actually got to get out from under these other people and got known for what they were doing. It would make the music world better. It just would.
>> David: You mean change a word, earn a third?
>> Kim: Okay, well I think that's all the time we have. Thank you so much to all of our panelists.
[ Applause ]
>> This has been a presentation of the Library of Congress. Visit us at LOC.gov.
>> From the Library of Congress in Washington, D.C.
[ Silence ]
>> Brad A. Greenberg: Okay. Great. This is the fifth session of the day as the board tells me. This is the intersection of moral rights and other laws. As you heard earlier today, the U.S. adapted the patchwork model to providing moral rights upon joining the Berne Convention. In the U.S. our mechanisms for recognizing moral rights come not just from the Copyright Act itself but also from a variety of other federal and state laws, as well as supplementation from private ordering. The patchwork, though, isn't just the source of moral rights, it's also the scope of the rights we have and that's what we're going to discuss on this panel. Not just where those right come from but how they're defined and how their definition is shaped by other laws. We'll look at the interactions and instantiations within the Copyright Act itself such as the fair use doctrine and VARA, the boundaries of VARA, at free speech considerations that exist outside of fair use and the traditional contour of copyright law, and at business and contractual arrangements that guarantee proxies for moral rights such as you heard earlier the creative commons created by license. We have some amazing panelists here to discuss these issues. On my left is professor Sonya Bonneau of Georgetown University Law Center, to her left is Paul Alan did we say earlier it was Leevy? Yeah, not Leavy. Paul Alan Levy, an attorney with the Public Citizen Litigation Group, to his left is Eugene Mopsik, a retired professional photographer and a longtime advocate for visual artists, then Nancy E. Wolf a partner at the IP media entertainment law firm Cowan, DeBaets, and on the far end is Kate Spelman, who is here from Seattle where she's a shareholder at the law firm Lane Powell. So I'm going to turn this over to the panelists for brief remarks to discuss various aspects of these intersections and then we'll have a number of questions to discuss among ourselves and then at the end as you've seen we'll have about five minutes hopefully for audience questions. So Sonya?
>> Sonya Bonneau: Okay. Well, I hate to bring up VARA again but it is one of the few moral rights legislative acts that we have and I just wanted to talk about an intersection from a policy standpoint of VARA's place in the Copyright Act and its -- the multiplicitous goals that it -- under which it was enacted. And even though it's this tiny tiny narrowly circumscribed statute, it purported to do a lot. A lot of the legislative history talked about different things. One was a sense that copyright law doesn't help the visual artist who produces unique objects. Everyone else works on a system of number of copies sold whereas for the visual artist you sell its over. The other was what you can think of as the true moral rights perspective where it's about the individual's connection with their work although that to the extent that's what it's supposed to do there was really no reason to limit it to visual artists but again that's part of it. You see that in the there's a lot of flowery rhetoric romantic artist type rhetoric whenever courts talk about it regardless of whether they are actually thinking that's important. And then there was the cultural preservation side to it which is what I'm going to focus on. As Peter, you discussed earlier, that is the one the VARA's right against complete destruction of a work of recognized stature is actually the one aspect of VARA that is not required by Berne. So the U.S., despite its hundred year resistance to Berne went ahead and enacted something that goes a little bit beyond what was required but not beyond in a moral rights way. I think it was part of their idea that this could benefit the public because it assumes that the artist's interest, the artist who is enforcing this right is directly aligned with the public interest. So art preservation is good, we can get moral rights and we can also serve the public interest by saving great art. The problem is within the Copyright Act, copyright law is based on a progress model in which, as I'm sure you all know, the author gets a temporary monopoly on their work so that they can profit from the number of copies sold and then that's the incentive for creativity and then it goes away and the public gets access to the work. Whereas the preservation idea is a completely different notion of -- it preserves. It rewards the status quo and it's animated by an artist when someone wants to destroy their work, and I'm only talking about the destruction provision. So you've got a very different dynamic set up, and I think that's partly why it hasn't worked well and these combinations and intersections become even more problematic when you look at VARA and the fact that that's the main provision that is invoked. I mean very little of it the case law's attribution because the circumscribed set of artifacts of unique objects is just -- it's limited to that kind of production and reproduction.
>> Brad A. Greenberg: Thank you, Sonya.
[ Laughter ]
Paul do you want to jump in and talk about free speech?
>> Paul Alan Levy: Sure. So it's awfully hard to come out against moral rights; the catch phrase sounds so good. And there are certainly compelling stories told about abuses directed at works by certain offbeat individuals who are authors. But if moral rights are legislated they'll be enjoyed equally by the mainstream commercial titans. From a copyleft perspective, which is mine I worry about the impact of legislating new rights on the public domain and more broadly on what might be described as fair uses and downstream uses. Because even and even if the newly adopted moral rights have fair use exceptions, you worry about the transaction costs of having to defend lawsuits in which fair use rights or first amendment rights are raised as a defense not to speak of the intimidating impact of demand letters. To the extent that the moral rights debate really represents a struggle between individual authors and what might be called the corporate copyright exploiting industries, my sympathies are certainly with the individuals, but it's hard to see moral rights be legislated that give rights only against those exploiters. And moreover it seems to me that advocates of moral rights for individual creators want to have it both ways. They want to make it easy to make money from expression using the incentives that copyright law fosters by licensing works through a system that facilitates the use for monetary rewards and taking advantage of the ever-increasing remedies that are available to copyright owners. The ridiculous extension of copyrighted terms whenever Disney's rights are about to expire. The terrifying levels of statutory damages, advocacy, criminal enforcement programs when federal prosecutors so that rights owners don't have to have the bother of enforcing for themselves, and of course ready awards of attorney fees. At the same time some creators want to use moral rights as a club to stop downstream uses that they don't like even though they could have prevented many of those uses through licensing making the kinds of choices that Melvin talked about but that most creators don't want to insert into their contracts either because it would make their works much less marketable or because they lack the economic clout to enforce them or to insist on them. So ultimately despite my sympathies it seems to me that before we give new rights to creators we ought to think about cutting back on the rights that they already have. Rather than talking about moral rights as a bundle moreover we ought to be thinking about specific moral rights. And it seems to me the proponents need to justify the need for a particular moral right to the extent -- this goes to the question that I asked Jane at the end of her talk. I mean most of what she said about the right to attribution was, well we agreed to it and there was a long answer about why we agreed to it and we can debate whether we agreed to and exactly what we agreed to. At the very tail end of her answer we heard something about the incentive to create and so what I want to know is: do we not have sufficient creation? Do we need to have more rights, moral rights in order to create an incentive to create? We also talked about the interests of consumers but what evidence is there that consumers care about attribution? Yes, I mean in trademark law the reason why attribution rights are important is because in certain circumstances consumers care about source. And when you're in a circumstance where the consumers don't care about source, you have relatively little trademark rights. So what's the evidence that we need a right of attribution to serve real interests of consumers who care about source?
>> Brad A. Greenberg: So Paul talked about negotiations and licensing agreements. That sets up nicely. Gene, do you want to talk about how creators guarantee themselves at least attribution rights, sometimes integrity rights, through guild agreements, contracts and how it's maybe a poor fit for some types of creators?
>> Eugene Mopsik: Well, I'm going to start out -- I have to make an observation first, which is a rather strange irony that here we are at an event about authors attribution and integrity and only one of the images in the program has an actual credit for a creator. We'll go on from there. And I'm going to make some general comments and then I'll actually make some comments that are on topic.
>> Brad A. Greenberg: To be fair, I think some of the credits are actually at the end of the bios.
>> Eugene Mopsik: All right. It appears to me that moral right for all practical purposes are not on the radar of visual artists and photographers. It's not something that they think about in negotiations. They have enough trouble trying to figure out whether their work is published versus unpublished, and moral rights just don't exist for all practical purposes, and under VARA commercial artists are excluded from any real protection. I would say that VARA and Berne are both examples of an analogue solution to what's now become a digital problem. The works that are protected by VARA are in fact the works that need the least amount of protection today and the commercial works are much more easily separated from their identifying information than the limited numbers of works of fine art. The preservation of identifying information such as rights holder, contact information and licensing history needs to be easily associated and maintained with images. Ultimately its attribution is the holy grail for photographers. Without that everything really falls apart, there's no end, there's no means to get to creating an ongoing income stream from works. While it's trade practice for editorial work to customarily have a creator credit, the truth of the matter is that it's very difficult enforce. And as Alan pointed out, yeah, the contracts are there but and the terms are there but the enforcement is the issue. And in some cases it's not enforcement it's just the lack of having any leverage in negotiating. And frequently when a photographer goes to a publisher be it for textbook or consumer publication, the contracts that are handed -- they're told take it or leave it. This is the contract. You don't like it, you don't work, you can go somewhere else. And unless you happen to be one of those very rare photographers like an Annie Leibovitz or, you know, one of the top of the food chain, you're out of luck. You don't have any leverage. It's move on and you either accept those terms or not. So another example I had a discussion with Yoko at lunch; in Getty Images contracts they generally call for a credit that reads the photographer's name, Getty Images. If you watch CNN or almost any other television media and you look for the credit for images that appear, it's almost always simply Getty Images without the photographer's name. And why that happens I, you know, can be any number of reasons. It's either it's too difficult for the station or they can't follow it or it's simply that Getty doesn't want to enforce that portion of the agreement.
>> Brad A. Greenberg: Thanks, Gene. Nancy, do you want to jump in there?
>> Nancy E. Wolf: All right. Well, great. I'm here today with my hat for representing a trade association, Digital Media Licensing Association which is the trade association of stock for the libraries and we had Yoko Miyashita here who is a leading member so now I don't need to explain what we do. That's very helpful. And it's good to follow up with Gene, yes. There's lots of trade practices and in print editorial you generally always got the credit, the photographer name and then the source because that's the payment and that was fairly standard. You know, digital revolution has made it so there's more images being used ever, yet unfortunately as even Yoko mentioned often many of them are just because someone has chosen to right click. And it's interesting because I do a lot of education and copyright education as part of my role and most people are amazed that there really is no attribution and yes, you know, obviously if we're in the business of licensing none of these works are subject to any kind of moral rights. So I -- but I think attribution goes well beyond moral rights and if you're going to look at a world where images can be licensed and has a future with technology, it's going to be very important that there is attribution and it exists in the form of a persistent identifier that can live with an image and that that information can be always attainable.
Metadata, unfortunately, is not robust. It gets stripped, half the software purposely strips it because the internet wants to have small files and that means a lot of information gets lost. Orphan works is a bigger problem with visual images than anything else because they're orphaned from birth. It isn't as if, you know, that photo libraries and photographers want the works out there without information, it's just that the way they get published online that seems to happen. The industry looked at this and that for the last probably since the orphan works act and probably that was around 2006 or 2008 has started to consider technology options which would include image registries, as Yoko mentioned, there's already reverse image search. But to really make that happen there needs to be enforcement, whether it's through what the Copyright Office could possibly do through CMI that that information can stay with the image and be there. And even I think if we're looking at the other laws, I think because image licensing had been one to one and perhaps maybe overwhelming and seemed to be too difficult to find ownership that unfortunately laws in other areas have broadened. For example it seems like fair use particularly with, you know, art attribution expanded to make it easier to use images versus other works. And then if you look at image search which a number of years ago you'd do an image search you'd get a little thumbnail and it would drive you to the source so you could actually go and have an image license. Now if you look at image search, you get a beautiful large display of an image because the money in the internet now is keeping you sticky on a page. That's where the advertisers are. So there's no incentive to drive you back to the original creator, there's, you know, you can see a small line that says do you want to just look at the image or do you want to see the web site. Well you have the image, that's all you need so you're not driven back to the web site. So I think if there was a way to have persistent identifiers that stuck and you can then introduce licensing models where it would be easier to license and maybe you wouldn't have so much of the overexpansion of fair use like in Google Books because it's easier, you know, not to get permission and not to have some kind of licensing mechanism and you won't have technologies being built for the narrow takedown notices.
>> Brad A. Greenberg: Great. Thank you. Kate?
>> Katherine C. Spelman: My part in the choir here is the intersection of moral rights and real estate, physical property. I was a student of VARA, I thought VARA was something I understood, I was also a regular volunteer at California Lawyers For the Arts. And if you can imagine on a foggy February of 1993, I alone arrived as the lawyer volunteer in a very abandoned pier warehouse where we welcomed anyone to come and ask copyright questions. And you can imagine that I was a little terrified when the door opened and in walked three giants really looking pretty rough with tattoos up their neck and I had never seen that before, and I thought the end is near. But indeed they walked over and they held up magazines and travel guides to tell me that they were indignant that their murals which they had carefully painted on Balmy Alley in San Francisco's Mission District had been reproduced without permission and most of all without payment to be cover articles and to be indeed covers of some of the most famous travel magazines travel guides for the city of San Francisco. And they were indignant in the sense that they didn't think it was fair and I had the pleasure of telling them that indeed they were well within something called the Visual Artists Rights Act the VARA and we then began working together. I had Scott Turow had the experience of his publisher saying, oh that doesn't apply to you. I had a very similar experience in that when I contacted the relevant publishers in 1993, their first answer was what? What's VARA? And their second answer was when I showed them what it was I was at issue, they said that's not art. That's vandalism. That's not art that's graffiti. That's not art I don't have to talk to you, good bye. And I had to explain that the people of Balmy Alley had made their alley, the walls of their alley -- and many of you I'm sure have been to Balmy Alley and seen how fantastic these colorful vibrant magnificent murals are -- that indeed there was consent and the real estate people were all in cahoots with this and we pursued what was several very very productive settlements for the community that had painted these, painted these excuse me. Fast forward to 2013 and I get a call from people in Detroit who tell me they have a mural issue and by now I think I've pretty much got the rhythm of murals. I think I've figured out VARA and murals and I've got this square dance and I kind of know the dosido and I think I'm doing all right at which point we learn that what happened -- the facts are so spectacular I have to share them with you. Dan Gilbert, a Cleveland fellow who owns the Cleveland Cavaliers and is also revitalizing Detroit. He has, you may know, has brought lots of street artists to come to Detroit and in one instance he brought six famous street artists to come to Detroit to paint for each of the parking levels of the new parking building he had. He brought fabulous street artists including Banksy to Detroit to take a floor so you'd always remember where you parked your car. Well, Banksy finished his day of work for Dan Gilbert, who is very generous as a patron in commissioning this, and they partied all night and it ended up that he ended up in Hamtramck, a little town inside of the town of Detroit, and at the Packard, the old Packard automotive plant which as many of you know has been abandoned -- literally abandoned -- for 26 years. Abandoned to the point that no one has paid taxes, no one has done anything, it's just no man's land. And Banksy and his team stenciled a giant of one of his favorite stencils on it and a gallery owner in Detroit noticed this happening sent an armed guard down after Banksy and his team was done about dawn they sent down armed guards until a 16 wheeler could be arranged to come down and they cut the Banksy stencil out of the wall of this building, put it on the 16 wheeler and then welded a frame around it, enjoyed for a period of time and then put it up for sale. The auction was going forward, all was going well until the owner of the Packard plant thought, hey that's my plant. You took my wall. And so they raised their hands and said you can't do that, that's our wall. And it will amuse you to know that the judge in the city and county of Detroit said, yes it is your wall and you haven't paid any taxes for 26 years. [Laughter] If you would like standing to bring this dispute in Detroit you will need to pay back taxes, penalties and interest and that comes to X which was almost three quarters of a million dollars. And he quickly said, oh I guess I don't have a problem. And the work then was sold at auction by the gallery company for about $325,000, this big piece. And when Banksy was contacted he was like, yeah I had a good time. I knew what I was doing, okay by me.
>> Brad A. Greenberg: So, Kate, that --
>> Katherine C. Spelman: So my intersection is that of an area of law that you don't think of colliding with VARA excuse me.
>> Brad A. Greenberg: Well, yeah, I know. So that this is a good way for us to sort of close the book on the VARA discussion at least for our panel. And that is that VARA tries to strike a balance between property rights and moral rights. So here we're really talking about personality right, property versus personality. But pretty quickly after VARA was enacted we had the Helmsley-Spear case which, of course, the court says well these weren't absolute rights for for creators and we have to assume that traditional property values have been left, property right values have been left in place. And I think of the Five Points case something similar with this in recent years, so I'm wondering the balance that VARA strikes between property and personality rights and who are the winners with losers in that balance?
>> Nancy E. Wolf: Well, I would say it's pretty obvious that real estate wins over VARA in most situations. It just seems that no matter what the courts seem to favor property owners. I remember when I was a baby lawyer and first going to federal court I loved this arch down in New York this magnificent arch and no one else seemed to like it but me. So it was taken down.
>> Brad A. Greenberg: Not recognized -- work of recognized stature.
>> Nancy E. Wolf: It wasn't a work of recognized stature. It was fabulous but, yeah, it's there's so many ways to wiggle out of VARA and artists can waive it so it seems that property owners and the value of their property and if it's inconvenient to have the art in the lobby or in the front the property owners win.
>> Katherine C. Spelman: That's assuming someone owns it.
>> Nancy E. Wolf: Yes. Other than Banksy.
[ Laughter ]
>> Sonya Bonneau: I just have a quick point
>> Brad A. Greenberg: Absolutely.
>> Sonya Bonneau: Which is that it's not surprising because American law is based on property rights and so you have that dissonance whereas attribution as is has been obvious throughout the day is a powerful social norm that most people do believe is the right thing to do. So just as a moving forward thing I think attribution has a lot more grounding at least in our --
>> Brad A. Greenberg: So good segue. Jane Ginsburg in her keynote talked about maybe attribution should be in some of these cases sort of part of the first factor in fair use. And that courts are looking at, you know, was the work attributed and so we get to the issue of fair use and attribution in appropriation art. Should Richard Prince have to credit Cariou somewhere on that photograph or photographs? Can appropriation artists, can they still do their art and be expected to attribute the source of the work?
>> Eugene Mopsik: You would think that, at the least, when Richard Prince took Jim Krantz's Marlboro Man -- one of these iconic photographs -- and basically performed copy work on it, enlarged it, it was then part of a significant exhibition at the Whitney, used on a poster, I think to advertise the show at the Whitney, sold for substantial amounts of money, and he makes no identification at all of the underlying work? Nothing? I mean not a handshake, not a -- I've contacted Jim Krantz because he was a member of our association and spoke with him. He unfortunately he did not own the rights to the image because he'd shot for a tobacco company who insisted on work for hire. So he didn't have the rights to the work and the tobacco company really didn't care what Prince did with it as long as they spelled Marlboro correctly. So there was no issue there so Prince couldn't bring any action, I mean Krantz couldn't bring any action. But you would think there would at least be some acknowledgment of the underlying work at the minimum.
>> Brad A. Greenberg: I mean that goes to when Paul was talking he talked about how he didn't really see how this would benefit authors and I think that raises a question about whether or not the moral rights would be transferrable. If they're transferrable, I think you run into maybe the same sort of problem we had with the reversion rights before the '76 act. If they're not transferrable maybe it looks more like the -- but they are waivable so you don't get the termination value. But the question there the sort of by what Gene was saying is if the owner of the copyright doesn't have the interest in making sure the work is attributed to who did it, who can step in if not the artist?
>> Eugene Mopsik: Go ahead.
>> Brad A. Greenberg: You don't care
[ Laughter ]
>> Paul Alan Levy: This goes to the question of whose interests are served by the moral rights? If they're freely waivable, then all you're doing you're not providing any real right against the people whose use is based on permission. You know traditional copyright exploiting industries, you're only getting rights against downstream users and so then the question is -- is the benefit that's secured by creating the right worth the imposition on the later users? I think you need to -- you have to make an argument for why the benefit is needed.
>> Brad A. Greenberg: I think Nancy has the argument.
>> Paul Alan Levy: What?
>> Nancy E. Wolf: I'm thinking you're putting it in a category where there's again winners and losers and us and them, but I think the impetus for moral right it's a personal right that doesn't attach to a personal work, but it's a right of an artist to always say, you know, that's my work. It belongs to me. I mean I still remember doing contracts where an illustrator worked for like a large animation company and they were told they weren't even allowed to put the work in their portfolio. And I said you know you have a right to say you did that. But if there was a persistent attribution, you wouldn't worry about the downstream users and that right of the artist to always feel attached to say I created it. That when you -- an artist creates a piece of work -- and I tried Art Students League so I know the difference between what I can do and my clients. It's a part of them. They are so attached. I mean I have clients it's almost like they're children. I had one of the artists from when Prince did the Instagram one who contacted me and his work was shown on art galleries as well. So I think if we look at benefit I think the benefit to the artist is a benefit to the public as well. It isn't that there's a sharp divide that somehow if you benefit an artist you've hurt the public because we're all artists. In this community of internet we're users, we're creators, we're a little bit of both, and I think making those bright lines, we miss having a dialogue.
>> Paul Alan Levy: I think that's great but you know when you create a right that's enforceable in the courts, that means you have the potential for litigation against an individual who doesn't have regular contact with lawyers, for whom if they have to spend $15, $20,000 to defend themselves for something they put on their Facebook page, they've already lost. So if you -- I come back to --
>> Nancy E. Wolf: But most artists have never gone to court. They can't. The only one who goes to court is Prince. He sells his work for a million dollars. I mean, what the artists are really looking for now is the copyright small claims court where something could be resolved for the actual value of the license where it wouldn't be so burdensome.
>> Eugene Mopsik: The right holders are primarily disenfranchised right now. They can't bring $150, $200,000 federal copyright case. You know the average photographer is just unable to do that.
>> Paul Alan Levy: You're saying the right holder or the creator?
>> Eugene Mopsik: Well for me most of my photographer friends are still the rights holder. And the creator.
>> Brad A. Greenberg: So if I can turn the direction a little to where contract law seems to be doing more work there are well, there's at least two areas. One is and we can start with well, there's the director who can retain final cut authority because they have the bargaining position or you have the editor who gets credited because it's part of the guild agreements. The question here isn't what is the source of the right but how important are those rights as provided for by contracts and guild agreements? How important are they to authors?
>> Eugene Mopsik: Well, I mean I'll speak as creator and author and not as an advocate that from my standpoint and what we you heard earlier from creators, I think you know creators do want to be recognized for the fruits of their labor and they want to see their name, you know, associated with their good works and it's just part of the creative process I think.
>> Nancy E. Wolf: I'll speak for the film lawyers in my office who I get to do all their fair use reviews but I can tell you that credit is significant and I think as one of those terms that gets it's importantly negotiated and where it is and the placement and the size it matters because that's your that's your career that's your portfolio. You're going to make your next movie based on the success of the one before and again having the acknowledgment for the fruit of your labor is I think a significant moral attribute but also financial ends up being.
>> Eugene Mopsik: Yeah. Let me just say, so I don't know how many of you watch television in December, you know at the end of the year I always seem to have the TV on when the Today -- I think it's the Today Show -- they do this year in photos on the morning and they show 10, 15 of what they say are the most fabulous images from the past year. Invariably those images have no attribution. They don't tell you who the photographer was who took these fabulous images. And as my mother would say they all sit there and kvell and this and that and what a beautiful photograph how great it is and this and that but they don't tell you who took the picture. I mean it's incredible. I mean how hard is that?
>> Brad A. Greenberg: Well, what role then, to add to that question, does private ordering play for these authors? I mean do they look at copyright law and say copyright law doesn't have an attribution right but I know I can get it from contact or do they just not even think in terms of copyright law when it comes to attribution or placement and they're really thinking in terms of deals?
>> Nancy E. Wolf: I think it's bargaining power and yeah if you're at a certain level you can require attribution. I mean if we were just talking about photography, typically if it's something in advertising it's never been the norm and you're no, you know -- even I think Annie Leibovitz won't get credit in an ad. She'll get it for the cover of a Conde Nast magazine but not for an ad.
>> Katherine C. Spelman: I would say it's an enfranchisement tool. I would say that particularly for those who work on murals that they get it and they really understand it and it became a civics class now in the Mission District of San Francisco. It's actually in their curriculum. These kids really care about it. This is, they think it's just, so they're really enfranchised because of it.
>> Brad A. Greenberg: So that's really interesting because in '96 this Office did a study looking at VARA and the first I think five years of it and one of the things I remember from the study was that something like half of or I think half of visual artists didn't know that your right could be waived -- rights could be waived and something like a third or another half had said that when they -- when they had blanched at the waiver provision it killed the whole deal. Has the climate then changed for visual artists? Do they feel like they have more bargaining power to insist on certain terms or is it are we in the same place?
>> Eugene Mopsik: I'd say they have less leverage now than they've ever had in the marketplace because the publishers are scrambling for every dollar they can get out of the proposition and the rights package that photographers have been asked to sign is significantly expanded now because you're asked to give rights not only -- I mean it used to be 20, 30 years ago, you know, it was a North American, one time, first publication prints. Now it's you know on any platform now known or envisioned or what's the term they use?
>> Brad A. Greenberg: Later developed.
>> Nancy E. Wolf: Later created.
>> Eugene Mopsik: Later created, you know it's all forward thinking and --
>> Brad A. Greenberg: Throughout the universe.
>> Eugene Mopsik: Right, throughout the universe. And you've got -- it leaves you, it leaves the creator with nothing. It leaves you with no ancillary rights.
>> Brad A. Greenberg: Kate, is the same true for muralists and sculptors?
>> Katherine C. Spelman: No. What I'm seeing is there's this break here that seems pretty clear that those people who are dealing with photography which is digital ab initio is it's a much more volatile problematic area than what people are doing when they are as a community group painting on walls or as an individual painting on walls or perhaps in sculpture as well. But I'm seeing is schism and I'm wondering what the other speakers think about this. Nancy?
>> Nancy E. Wolf: Well, I think with sculpture in fact I was helping a UK lawyer look at a commission for a large sculpture agreement for a real property owner in Philadelphia and I was like so surprised. I didn't see any moral rights clause or any waiver because I think a real estate lawyer did that contract and had no idea. I could just tell the way it's written. But I think if you're doing something for a large museum, they've read all the cases that deal with moral rights and they know how to write contracts that, you know, protects the interests if something needs to be moved or it's not finished or altered.
>> Sonya Bonneau: MASS MoCA did not have a contract with Buchel. That was -- that, the judge was incredulous.
>> Nancy E. Wolf: Right. So I think they've learned from the MASS MoCA that museums need contracts and they learned that they should ask for waiver and I think if you don't agree, you might not get a commission.
>> Brad A. Greenberg: So it's not just the type of artist but also the type of contracting party, where the schisms are. I think our last question that I'll ask before we open it up to the audience is that we typically think of these probably because Berne requires attribution and integrity rights but there are other moral rights. And I think there's an analogue maybe in the digital age to the right of withdrawal, which is something like a right to opt out or a right to insist on non-use. The direction though the fair use doctrine has moved and the Google Books search denial of cert today I think really hammers this home that this is a question for authors is, how do I opt out of these systems? Does that seem like that should be part of a moral rights suite? Is this something authors are thinking of or wish could think of?
>> Paul Allen Levy: A right to be forgotten.
>> Brad A. Greenberg: I don't want to use that term because it's not. It's not, right? This isn't like fully removing your work from the marketplace but it's a right to say I don't want to be part of that that new distribution system.
>> Eugene Mopsik: Well, I mean the problem as Yoko pointed out, you know, a company like Getty is able to put certain limitations on works and the most common ones have to do with liquor and smoking. But beyond that, you know, once once the work is out there and the identifying information is no longer with it, you have no control. And that's when I've listened to people talk about contracts all day but yeah contracts are great but it ultimately it means you've got to be able to control the distribution of the work.
>> Brad A. Greenberg: And that's a clear threshold problem but assume that wasn't an issue. Just assume in a utopian universe that you could you always knew where your work ended up and you knew if somebody was using it.
>> Eugene Mopsik: Go ahead.
>> Eugene Mopsik: Yeah. Well, one thing I see one sort of bump in the road which is I think once something is considered or would be considered a fair use, then it's considered an authorized use and I don't know there there might be a conflict between the right to have a work removed particularly if someone has added a lot of substantial creativity to it, to the new work. I think that might be difficult if it was the work unaltered, you know, it's always going to be cash somewhere. I think in that way you can compare it a little bit to the right to be forgotten. In Europe where the original article will never disappear but the links to it go down. I think it's very hard to wipe clean the web.
>> Paul Alan Levy: It's awfully hard to think of enforcing anything like the right to be forgotten in a country that has a first amendment.
>> Brad A. Greenberg: Uhhuh.
>> Paul Alan Levy: And I think that's the problem with the right to be withdrawn to the extent that it's a fair use.
>> Brad A. Greenberg: Yeah.
>> Paul Alan Levy: Or maybe you don't have a fair use provision but then you're just going to be litigating the first amendment issues when you're asking a court to order the removal of something.
>> Brad A. Greenberg: Yeah. I guess we have time for one last follow up to that. So Paul just to follow up on your first amendment discussion, some of the a lot of the patchwork comes from outside of copyright law where the fair use doctrine doesn't necessarily or doesn't apply. What role there does the first amendment do?
>> Paul Alan Levy: Well, you're -- certainly in the right of publicity area you end up applying the right of fair use by analogy and to the extent that you don't have the right of fair use or even backing up what there is, the first amendment has very broad application in right of publicity cases certainly outside the purely commercial exploitation situations. But there is a first amendment right to engage in commercial speech and then there's the distinction between having it in an advertisement or having it in a product that's sold, and yet then you have protection for what's considered to be noncommercial speech in a commercially sold work like the advertisement in the New York Times for which the New York Times was held not liable. In New York Times v. Sullivan, this was treated as noncommercial speech even though it was ad, so the first amendment has ample role to play in these sorts of situations.
>> Sonya Bonneau: Although I think that's why Michael Jordan was successful and he had several lawsuits and it -- because commercial speech gets less protection under the first amendment. That's a big question of is it commercial speech or not and if courts get into this classification system where they have to say what a given work is. Is it art, is it advertising?
>> Paul Alan Levy: Right.
>> Brad A. Greenberg: Great. Well I think now we're going to open it up to the floor so if you have questions just give me a little hand and I can tell Donald or someone else to bring you a mic. Yeah, Michael Wolfe
>> Michael Wolfe: Thanks very much for that. I greatly enjoyed the panel. I'm going to preface this by saying that my organization, Authors Alliance, is in many ways is also sympathetic to copyleft ideas, but we also endorse the idea of an attribution right. But all the same I do find Paul's earlier point an important one and I think Danielle made the point before him regarding the real source of attribution controversies being from downstream licensed uses, so I wanted to sharpen that a little bit for the panel and see if we can't all address it and find out whether there's something else there. But is there -- assuming a waivable right, is there, is there a practical value for authors from a waivable attribution right if it's only downstream licensed uses that is the problem? And if it's not and if there's more than downstream licensed uses that are the problem, let's say Richard Prince for example, although I think he is the exception rather than the rule, where will there been an instance of an attribution controversy that is not also an infringement of the rights of copyright and remediable from that avenue?
>> Brad A. Greenberg: Any takers?
>> Paul Alan Levy: I mean certainly to the extent particularly when you're dealing outside the range of form contracts with a huge commercial enterprises with which a creator is dealing, a writings requirement and an explicit writings requirement at least provides a point of discussion and sort of conscious giving up or conscious taking and I think requirements of clear and unmistakable waiver, for example, play a large role in many areas of law and I think they're valuable.
>> Eugene Mopsik: Just one brief comment. What you commented on the difference between or the ability to remedy through if something were a copyright infringement that you could in fact bring a case. And I go back to my earlier comment that by and large that's not a remedy. At least not a remedy for a photographer who makes 30 to $50,000 a year who most probably didn't register his work to begin with, there's no remedy for those myriad of uses that are being made of his work.
>> Michael Wolfe: That's a fair point from a procedural stand point but would this would the moral right be more accessible to the author in that instance? I suppose there will be follow-up.
>> Nancy E. Wolf: Well, I guess it depends what you mean by accessible. If an individual author has to try to locate all these downstream users, most of the problem is it's the impossibility of it. They could be anywhere in the world. How do you go after them? I think that's been a lot of the problem with anything that goes viral. I mean if you, you know, take something so you've made another copy rather than do what Getty Images does and allow you to embed where you go back to the source, it's really, you know, an impossibility to whether it's under moral rights or copyright infringement really to enforce most of those downstream uses.
>> Eugene Mopsik: And I'll just say about if in fact the moral right is waivable, I would venture to guess that when it comes down to a negotiation with a photographer who's faced with what I call the 30 day horizon which is the next billing cycle and he's got to pay his bills and worried about rent and everything else, he's going to give up that right. No question.
>> Sonya Bonneau: But if the law gets too complicated then it can have the chilling effect on for lack of a better word amateur users who are using the web just like the big commercial players. And so we have to think about how accessible the legislation would be to use.
>> Eugene Mopsik: Yeah, we're not chasing the amateurs.
>> Jane Ginsburg: If it's not inappropriate, I'd like to venture an answer to the question, which is one big difference is between an infringement action and a moral rights action is if the authors doesn't have the economic rights any more, the author doesn't have an infringement action but the author could is still have a moral rights action.
>> Nancy E. Wolf: Good point.
>> Jane Ginsburg: And I'd like to make another suggestion regarding downstream uses which may require legislation but I have to think about if you could do it without legislation which is, as Nancy says, nobody wants to go after downstream users. But what about the platforms? Could there been a 512 type claim based on attribution? So in other words if there's no attribution on the content that has been placed on the platform, that would be the basis to either have it taken down or attribution added. So that might be a way of rendering enforceable and attribution right which is distinct from the economic right.
>> Nancy E. Wolf: And if there were persistent identifiers that readily identified the owner of a work, then maybe the issue of all this red flag knowledge would raise its head again. I mean if you knew what was getting uploaded on your platform was not by the same name as who was uploading it --
>> Jane Ginsburg: It would be interesting to --
>> Nancy E. Wolf: Interesting.
>> Jane Ginsburg: To construct all of this, also I'll point out however that the, at least under CMI, it's the rightsholder. And again the rightsholder is not necessarily the author, so you would have to have a basis for the author to protect that robust information.
>> Eugene Mopsik: The plus system does that.
>> Nancy E. Wolf: Yeah, the plus system is trying to do that right now.
>> Eugene Mopsik: It recognizes both the rights holder and the creator and licensors, licensees.
>> Jane Ginsburg: Right. But I mean in addition to the technical basis, the legal basis.
>> Eugene Mopsik: Right.
>> Brad A. Greenberg: Mickey, you've got the mic?
>> Mickey Osterriecher: Yeah. Just we've been talking about attribution rights versus economic rights but what we're seeing especially with photography is people see your name and then they contact you and say well, we don't have a budget but we'll give you a credit. Do want to talk about that kind of reverse problem?
>> Eugene Mopsik: Yeah, that's, you know, the attribution on the one level helps build the brand and so it you know helps the photographer become identified. At the same time it certainly doesn't pay the bills directly and there are as Mickey points out, numerous cases I had -- I mean many years ago I did photographs of the lighted Ben Franklin bridge in Philadelphia and the architect calls me up and he had the opportunity to license these images to use for his purposes and when he found, you know, I give him the fees for it and he didn't want to pay. He didn't want to do anything. Well, then two years later I get a call from AIA they're giving this man some life achievement award and they want to use my photographs as part of the presentation thanking him. And so I said you know he had the opportunity to license these images and he turned it down. I said what do you have in your budget to use this image in your presentation? And they said well we don't have any money but we'll give you a credit. And I said to them look I have to tell you I make my money through licensing images and through creating photography and quite frankly I'm not an architectural photographer. I did these images of the bridge just because it was something that I happened to like, so I did them on spec and then sold them to a magazine, and I said that that credit has no value to me. I said I'm sorry we can't eat the portfolio piece. It doesn't work.
>> Brad A. Greenberg: We've got time for one more question I think. Yeah. Yeah.
>> I just wondered, given how the CMI information is stripped from images, do we really want to put an affirmative duty on fair users to be able to have, to then find out who the author is in order to give them attribution?
>> Paul Alan Levy: Certainly from a litigation standpoint, as somebody who represents individuals I would worry about that. Also wondering what are the remedies for having failed to do that -- if it's simply injunctive that's one thing. If it's damages and attorney fees it's very different, and yet if you don't have the monetary remedies what's the disincentive to do it?
>> Brad A. Greenberg: You know if I could ask to follow-up to just sharpen that question, what though is the real harm to a user and if they're going to use somebody else's photo or someone else's music or someone else's whatever that they either use something that they know they can identify the author and credit that author or they don't use the work. Like I guess I don't --
>> Paul Alan Levy: So I'm putting up a photograph on my Facebook of course Facebook requires me to sort of verify that I've got the authority, but I think for the small user knowing actually how to stick that stuff in --
>> Brad A. Greenberg: Sure. Well so we -- but that can be the reasonableness a requirement, right? Similar to with broadcast where it's not reasonable to include the attribution maybe there it's, you know, for the user who it couldn't make sense or there's nowhere to put it or what not.
>> Nancy E. Wolf: There is a free web site called TinEye and you can put the URL with an image in and it will find you all the matches. You may not get the one that actually is the owner, but it is really fast and really easy. So I think this question now it might not be reasonable but I can see a future where this could be much easier.
>> Sonya Bonneau: There would also be a question of how the secondary user used it and how much of it, all the questions that come up in fair use might complicate, well when is the right of attribution triggered? Is it with Blanch v. Koons, like how much of that photograph you know can and so when can you demand an attribution right? Could be complicated with remix.
>> Brad A. Greenberg: Sure.
>> Nancy E. Wolf: Creative Commons has an attribution right on almost all their licenses which are noneconomic.
>> Brad A. Greenberg: The default used to be no rights reserved but they found that, I don't know, 97 percent of people opted for the credit created by. Yeah, so I guess on that note I think we have a ten-minute break now. If I'm wrong on that someone correct me. But 15 minute break and then we're back in here I guess at 3:30.
>> This has been a presentation of the Library of Congress. Visit us at loc.gov.
>> From the Library of Congress in Washington, D.C.
[ Silence ]
>> Maria Strong: So welcome, everybody. This is section six which is on new ways to disseminate content and the impact of moral rights. My name is Maria Strong, I'm with the copyright office. And we're joined here today with, to my immediate left, Scott Martin, who is Executive VP of IP for Paramount Pictures; followed by Alec French of Thorsen-French Advocacy, representing today the Directors Guild of America. Next to him is Mr. Stan Pierre-Louis who is Senior Vice President and General Counsel of the Entertainment Software Association. Next is Roxana Robinson, author and President of the Author's Guild. And at the end is Mr. Chris Castle of Christian L. Castle Attorneys.
Today, as we've heard, we have the opportunity to sort of wrap up all of the exciting things that we've heard in the panels before us, but also to really hear more about the importance of contracted transactions and distribution practices. On this panel, we have representatives from private corporations, from guilds, from organizations representing individual authors. So this is an opportunity for us to explore with you some of the issues that have been raised today, as well as at the end, we'll maintain some questions -- time for you all to ask us.
So with that, what I'd like to do is open up with a question for all of them. We'll go down the line, and then we'll start up with more individual questions just to get the conversation going. So for everyone -- the question that they have to consider and answer for you all is: what are the most important elements present in your industry that contribute to supporting the concepts of attributing author's interest in the final work and for protecting the integrity of the author's contributions? And what are the biggest challenges that you face in your sector?
And with that, we're going to start with Mr. Scott Martin.
>> Scott Martin: And I should probably note, Steve Marks, who is supposed to be with us, is under the weather, which is why he's not here. I really wanted to have his placard in front of me, because then I'd have complete deniability. "Did you hear what Steve Marks said today at the Copyright Office?"
[ Laughter ]
But they wouldn't give it to me. In order to answer the question, I brought some visuals because I come from a visual world and I can't speak without images. And what I wanted to focus on in answering Maria's question is something that we haven't really touched on a lot today, which is collective works. We've been talking a lot about individual work, so works of things like books, magazine articles, photographs, sculptures. I come from the world of collective works, which raises a lot of issues that we haven't really gotten into today. And so what I wanted to do was look quickly at how some of these issues are dealt with in Europe.
So do European moral rights apply to U.S. citizens? The answer is yes. No. Maybe. So even as we go through these, when you're looking at countries that are the home of hardcore statutory moral rights, there's not a lot of agreement. For foreign work, which country's law defines the initial holders -- who is the initial holder of the moral rights? In other words, choice of law.
In some countries, it's the local law. In some countries, it's the country of origin. In some countries, it's kind of unresolved.
Who gets the moral rights in a work created by an employee on the job, in fact, a work made for hire? Some countries, it's the employee. Some, it's the employee. In still others, there are no moral rights in a true work for hire.
Who is the moral rights author of an audio/visual work? It's all over the place. In almost every country, it includes the director. Some countries include the composer; some do not. Some include the producer; some do not. Several, as you see here, France and Brazil include possibly others. In some countries, it's undefined.
Who has the moral rights in a performance? Some countries, it's the performers. As was mentioned, I think it may have been Duncan who mentioned it this morning. In some countries, there are no moral rights in a performance.
If there's more than one holder of moral rights you will have in a collective work, can one holder alone block an act? In some countries, yes; some countries, no; some countries, unresolved.
After the holder's death, do moral rights survive? This is an easy one. Yes. In every country that has moral rights, they always survive death. If post death, there's more than one successor, can that successor alone block an act? In some countries, yes; some countries, no; some countries, not so clear. Is a contractual agreement to waive moral rights enforceable? Can you waive away your moral rights? In some countries, no; some countries, yes; some countries, no, but --
What about limiting it? Can you agree not to waive it but to limit it? Again, some countries, no; a few more countries, yes, but with limitations, usually where it's a yes, but -- it's a yes, but for a very specific agreement to waive a very specific use.
So what all of this does, I think, is highlight the complicated nature of moral rights when you're talking about film and television, and collective works. And that even in the countries that have these robust, long-standing statutory moral rights regimes, there's not agreement on how you deal with it.
So what is the best way to deal with it? My view of the solution is -- and again, just talking about film and television -- that effective collective bargaining is the best way. And I'll stop there because I think a little later we're going to talk about collective bargaining and how it actually works.
>> Maria Strong: Thank you, Scott. Alec.
>> Alec French: Sure. Well, the Directors Guild of America has long believed that due to the unique nature of filmmaking, its members deserve recognized statutory moral rights. I think the best way to explain this or to explain why, is I think a really eloquent letter that the Directors Guild and the Writers Guild submitted to the House Judiciary Committee for a hearing they did in July 2014 on this. Just to quote from it briefly, "Funding a motion picture is not the same as actually creating it. Holding a copyright does not confer artistic talent on a corporate entity. Rather, it is the writer and director's creativity and vision that is decisive to telling a story. A myriad of intensely personal and visionary creative decisions give life to the motion picture. Creative expression like authorship is a human, not a corporate, quality. We believe that authorship has to do with creative vision, and that moral rights reside with those who have that vision."
So that's kind of the starting point for how the Directors Guild looks at these issues. And then to the second part of the question Maria asked, I think the biggest challenge that directors face in asserting moral rights is a combination of two facts: one, there are no meaningful statutory protections for moral rights in the U.S.; and two, and this is what Scott pointed out, in the U.S, motion pictures are considered works made for hire. And so directors effectively don't have any statutory right to control the motion picture after creation.
>> Scott Martin: Adding to what Alex said, not only do we not have moral rights legislation in this country, something we haven't talked about today that affects the DGA initial particular, is we have anti-moral rights legislation, which is the Family Movie Act of 2005. I think Mary Beth just passed out.
[ Laughter ]
That creates a right to alter a motion picture to take out the smutty bits.
[ Silence ]
>> Stanley Pierre-Louis: I hope that wasn't a lead-in.
[ Laughter ]
So ESA represents the video game industry, and really it's U.S interests, both on the U.S. publisher side and the game consoles. I'll touch a little bit on international,but I'll veer as much away from it as possible since that's the province of some other groups.
The interesting thing about the way video game companies are set up is that they are partially like film studios, television studios, record companies. And they are partially like software companies. So on the one hand there are third-party collaborations that occur where someone has created a particular property and that either gets acquired or gets put into a larger work, or maybe it is the work that gets distributed.
On the other hand, many video game companies actually hire everyone, including the composers and everyone else. And so everyone is an employee. And so you've got this dichotomy of both how specific record companies are run, and how the industry may work in an acquisition phase or otherwise.
But under both models, what becomes difficult is distribution if you need to get permissions all along the way outside of that initial model.
Because under the U.S. construct at least, work for hire and licensing of that nature helps in terms of flexibility and setting expectations assembling the rights.
In other countries, as I talked to some of my colleagues abroad, particularly in France, the key there is to have good relationships with third-party authors because moral rights regimes are so much stronger that you've got to make sure that you're creating those relationships to get things moving. And that ends up being the key beyond any contract because if people feel like you're using their work in a positive light and a way that they intended it to be portrayed, things get approved much more quickly.
And so the American side of companies, when they look at what happens, particularly in Europe, are glad not to have a moral rights regime because it helps to be able to assemble those rights moving forward. And I think the challenge really is how do you change all of the expectations that have built up over time onto the construct, particularly if you have a company that hires lots of the collaborators that make up a video game. And I think that's going to be one of the challenges, is how you maintain expectations while looking at the way the companies are really set up in the U.S., at least in our industry.
>> Roxana Robinson: So I'll talk a little bit about moral rights and also how they affect the public. Somebody raised that question earlier saying, "How does this benefit the public if we're protecting the moral rights of the creators?"
We've heard that the moral right accrues to a work that's created by a single individual, only that individual could create this particular piece of work -- this book -- I'll talk about books. And as you have heard, the Supreme Court has decided not to hear our case, the case that we brought up Google Books. And I'll talk about that a little bit in terms of the way it affects our authors and their works.
So one of the things that we believe should be contained within the idea of moral rights is that you have control over your work. You created it and you should be able to control it. At the very least, you should be consulted, your permission should be asked for if your work is going to be put into an enormous database and disseminated to the public at the will of the aggregator and it will have nothing to do with you.
So we feel that that is a real problem in terms of the moral right of the creator. So what has happened, the moral right and the fair use notions have become sort of blurred. So what Google Books did was to take 20 million texts without the permission of the writers and put them into a database which is accessible by anybody. So I'll describe a situation in which that usage is made and how it affects the public, and how it affects the writer.
So we have a student who needs to write a paper on "Anna Karenina". She goes to her computer because it's easier than going to the library, and she types in to Google Books "Anna Karenina, Leo Tolstoy, divorce". She only needs to know a little bit. She wants to write in her paper about the fact that Leo Tolstoy's sister had a disastrous affair, she had a child out of wedlock, and she considered suicide. The student wants to know when that happened, when Tolstoy died, and when the book was published.
It's very easy on Google Books. A woman called Rosamund Bartlett wrote a great biography of Tolstoy and it's there. The student signs in, finds those facts, and signs off. She doesn't need to buy the book. The library doesn't need to buy the book. So it's done.
However, Rosamund Barlett -- I don't know her, so I'm assuming this -- but I'm assuming that she took at least five years to write this biography. She went to Russia, she interviewed Russians. She might have learned Russian for this biography. She read critical works, she read Tolstoy's works. She created a unique version of Tolstoy's life.
She proffered that to a publisher. The publisher gave it peer review. The publisher edited it, copyedited it, made it into an object, and put it out into the world for sale.
Now, as an economic model, the work of those two people cannot be duplicated forever if there are no sales transactions. Libraries traditionally have been the great financial supporters of non-fiction. So academics have depended enormously -- people who write books for the academic public -- have depended on the libraries and the library systems. But Google Books can take the work of anyone they want. They have taken the works of 20 million writers and put it into a database that gives no compensation to the writers or to the publishers. That's a model that cannot be sustained, and that will cause harm to the public. If we cannot keep producing excellent works that are created over periods of time through a great deal of research and intellectual content, that are peer-reviewed and properly edited, the student must find the right information. She cannot rely on Wikipedia or somebody's Facebook page. That is not going to do it.
So she has to go to a professional source with material that is absolutely reliable. She goes to a book that's been published by a professional publisher.
Interestingly, Chris sent me an article about Google Books that was published in 2009 when they were being accused of doing this in a way that was damaging to the writers. And Sergey Brin, who is a co-founder of Google, said ingenuously, "We feel that this Google Books is part of our core mission." This is news to all of you. "There is fantastic information in books."
[ Laughter ]
"Often when I do research, what is in a book is miles ahead of what I find on a website." Who knew?
[ Laughter ]
But the point is that books are actually necessary for a society. It is necessary for the culture to have access to them. And in order to keep producing good books, we have to have compensation. That's all.
>> Maria Strong: Thanks, Roxana. Chris.
>> Chris Castle: Well, I would just add that one of the things that doesn't get discussed a lot with Google Books is the non-display uses, also known as corpus machine translation, for those of you reading along, which is how they have such a translation engine. Because when you teach a machine languages, you do it by comparing text strings. And one of the ways you get a lot of text strings that are identical phrasing is to have books that have been translated into a variety of languages which the publisher paid for, which the author approved. Right. So anyway, I can go on for a long time about that.
So I wanted to talk a little bit specifically about songwriters and recording artists who are subject in one way or another to -- some might call it the boot heel of the government, or others might call it compulsory licenses under Section 114 and 115 in the Copyright Act -- or what I would call near compulsory licenses under the ASCAP/BMI consent decrees.
So while there are reporting requirements for royalty accounting in these compulsory licenses, there's virtually no attribution requirement in them. So for example, if you were to check, I would put even money on this, that the most-used artists on Sirius XM is "various artists". The reason it's various artists is because Sirius doesn't go out and buy the album for every hit that they want to play on the radio; they go out and they buy a compilation record. And then they rip that compilation record -- which they're allowed to do -- into their system. And there's someone, usually a minimum wage employee who we also used to call a teenager, who is doing data entry, right, in their system. And they come to "who's the artist," and they look on the label copy and it says "various artists." So they put in "various artists." Right? And there's nothing that requires Sirius to do much more than that.
So consequently, when that kind of reporting comes to an organization like Sound Exchange or somebody who has to figure out who to pay and how much to pay them, they're looking at various artists and they're trying to figure out well, what does that mean? And so then they have to go back and take the song title and so on, and so on, and so on. Whereas, if there had just been a requirement of proper attribution for the artist, in that case, in the first place, that wouldn't have been a problem, or would have been less of a problem. And it wouldn't have turned so much on how that data entry person was feeling that day.
I would also point out that no digital retailer requires delivery of songwriter credits, producer credits, or musician credits. So iTunes has no requirement that anybody, any label that's uploading -- or as they call it, rather, discomfortingly, "ingesting" music into their system, actually provide them with substantial credits.
In fact, there was not even a place for composer credits in the iTunes info section, which you can check when you go home, that even had a slot for composer.
Now they have a slot for composer, but that's sort of voluntary on the part of the record company as to whether they're going to actually input any data there, and there's nobody that checks whether it's right or not.
This is really bizarre when you stop and think that record companies have extraordinarily detailed label copy management systems where they keep track of all of this. Because when you put out a CD, for example, someone, mainly the artist usually, approves all of the credits that go on that CD. And they want to have at least the songwriter names, they may put the publisher names on there too. That lives in the background in the label copy management system. So if you see songwriter names on the label, on the actual inlay card or the actual credits in the CD, somewhere in the background in the label copy management system, because it feeds into the mechanical royalty system, there is the names of all of these publishers that go with the songwriters. There's producer names, there's musician names.
There's a whole generation of people that's growing up not knowing who played on what. And that's mostly because there's really no attribution requirements that are meaningful for any of these digital retailers. Whereas on the label side, you would tend to have them because they still put out things in physical. There's going to come a day when that's no longer the case. Right.
So we haven't gotten that, you know, we're not at that inflection point. But that day is coming. Yet, on the song side, the songwriters can't say no. They have to license. They have to license under those conditions. They have to license regardless of whether the person has paid their mechanical royalties, knows who they are, knows who to pay. That person can continue getting compulsory licenses. If they've never credited one songwriter, they can continue getting compulsory licenses.
Now, you can always sue, but as we've heard earlier today, for the individual creator, the individual songwriter, particularly as we go circling down the drain in the declining revenues of the digital reality in the music business, those people aren't going to sue anybody.
So I just wanted to point out there's this nexus between -- that would be I think a pretty easy fix -- although I'm sure the copyright office is in full compliance -- but it would be a pretty easy fix to say well, if you're going to get a compulsory license, then here is what else you have to do too.
>> Maria Strong: Thank you, Chris. Thank you, all. What I'd like to do is -- we've had a lot of conversation today on a couple of issues: contracts, technology, the role of fair use and how it plays into moral rights, questions about commercial speech. So as follow-up on what Scott started, I'd like to kind of follow-up with everybody a little bit more on what do you think the key contractual terms or elements that you have in your industry that offer these moral rights type style of elements. I mean, we've heard mentioned already some of the collective bargaining and some guild contracts. But if we can maybe start a little bit with that, and if you can be specific on what are the elements that support that kind of morals rights like solution.
>> Scott Martin: Well, in my world, which is governed by collective bargaining, which as I said, I think where it's available and applicable is the best solution. It comes out of the guild agreements. So for example, the WGA Agreement, the Writers Guild Agreement, specifies the writing. And as you know, we cannot stop ourselves from hiring writers on movies. It's never good enough to have one, you're going to have to have two or three or four.
And then it becomes an issue over who gets credit, who gets story by credit, who gets written by credit. And all of that is governed by the WGA. We submit a notice of proposed credit, but it's the Guild who decides who gets the credit. Which is why no matter how powerful Michael Bay is as a producer and director, you will never see him get a writers credit on a "Transformers" film, because the Guild will never give it to him.
Just by a show of hands, how many people know the difference -- when you see a movie credit or writers credit for two names, and there's an "and," A-N-D, between them or an ampersand between them? How many of you know what the difference is?
[ Laughter ]
I see one and a half hands.
[ Laughter ]
An ampersand means that they wrote as a team; and an and means they wrote sequentially. Even a copyright/moral rights-aware group doesn't know that. But believe me, the writers know that.
Similarly with SAG, with the Screen Actors Guild for performers, we have a whole list of requirements that there has to be a separate card for the actors, it has to be readable in terms of color, size, and speed, so we can't fly past. We are required to list a minimum of 50 actors, and that's what's called the SAG card. It's one of the first cards you see in the end titles.
There are very significant financial penalties if we either don't do it at all or don't list all 50. There is an obligation to correct a print. So if we get it wrong, we have to correct prints even after they're in distribution. Beyond that, we are required by the collective bargaining agreement with the Screen Actors Guild to obligate exhibitors, distributors, broadcasters, not to cut the credits off.
So AMC Theatres, in order to squeeze in one more showing a day, can't cut five minutes of credits off the end of the film based on our contractual obligation with them. Those are levels of protection that you'll never get from a statute. And that's why I think where it's available as it is with commercial film and television, the direct negotiation is the best route.
Just to say real quickly, there's also integrity issues, integrity rights that come out of this. We've been focused a lot on attribution. But the Screen Actors Guild has a reuse clause that we cannot reuse a performance in any other work without the permission of the performer. If we do it without the permission of a performer, there's a financial penalty which is three times the daily rate for the actor times the number of days it took to film the scene, times the number of actors in the scene. So it's a very significant financial deterrent.
But at the same time, there's a bouncing because I talked about the veto right and how does it work statutorily where you have a collective work -- one author says, "I'm cool with this new use," and another author of the same work says, "No." Under the Screen Actors Guild, if there's a holdout, basically all of the actors consent to the new use, consent to the financial terms, but there's one holdout, we can submit it to the SAG board of directors. And the SAG board of directors decides whether or not they can override that one holdout actor.
So there's a mechanism, and it's a mechanism that's run by the performers to get around that.
>> Maria Strong: Others?
>> Alec French: I guess just following up in the movie theme, Scott's absolutely right. Through collective bargaining, some of the talent has managed to secure creative rights. As I've become familiar with over the last couple weeks, it's all right here in the Creative Rights Handbook for Directors.
And there are things that are facsimiles of a right of attribution and rights of integrity that you'd find in a moral rights regime. On the credit side, "directed by" is the credit -- the attribution that's given to the director. There are very specific rules on the lettering, the size of the lettering. It's either the last credit you see before the movie starts, if the credits are at the beginning, or the first credit you see at the end if that's where the credits are.
So that is a facsimile of our right of attribution. And there's a facsimile on the right of integrity side. There's something called the director's cut where again, through collective bargaining, directors have the right to present the producer with the version of the movie -- their cut -- after a set number of actual weeks that they're allowed to prepare that cut, and they're allowed to present that to the person in the production studio who has authority basically over the movie, not over someone below them. And no one can cut behind and kind of change it before it goes to the person.
So there are hard-fought creative rights that are part of the collective bargaining agreement that are similar to what you'd find in a moral rights regime. But I want to be clear, that still doesn't mean that Directors Guild feels that it's complete, that all of the rights that they'd like to be protected are protected against all of the parties they'd like them to be protected against.
>> Stanley Pierre-Louis: Yeah. In our industry, it can vary widely depending on the company, how the game is made. Often times, it'll be a lead designer who leads the effort. There might be a producer -- which I'll talk about in one second. But there have been reports that Grand Theft Auto, one of the big games put out by Take-Two Interactive, it took 300 people to put that game together. And they roll these out every few years. And you can imagine trying to figure out all of the various credits of someone who came in for this portion or that portion, it can get kind of complicated. But often times, a lead designer or designers will be the ones who get a lot of the credit.
In Japan, there's a phenomenon of producers.
Those of you who have not played modern games probably aren't aware that they feel very much like reality or like movies. They have storylines, they have plots, and they change depending on what your character does. And they very much are cinematic.
Last year's E3, which is a big expo for the retailers in the video game space, where retailers see the new games coming out, there were lines out the door for a few of the Japanese producers who were visiting because people rarely get to see them here. And so they really are treated like rock stars and the likes of J. J. Abrams kind of comment on works and play their games. It's very cinematic. But that's where it becomes complicated; is it more like a film or is it more like software? And it will be very dependent on the structure of the game and the structure of the company.
>> Roxana Robinson: The best protections that authors have traditionally enjoyed has been that of copyright, and that has protected the work until we entered the world of digitalization and electronic publications. So authors have lost a good deal of protection that copyright offered once their books can be taken without permission and put into other people's databases and disseminated.
What we would like to do at the Guild is to create a system that will offer some kind of market-based collective licensing, and we're working on that.
Other than that, there are other issues. Generally speaking, authors do have the rights of integrity, but we're seeing some kind of odd sort of piratical incursions into people's books. And we're seeing people's works translated into foreign countries -- into foreign languages and sold there, sometimes with a gender reversal. So it will be a romance book -- heterosexual -- and it will turn up in Germany being homosexual. Same book, same title, different author, but a pirated version.
So these are things that are going to be very complicated to deal with. I don't have a solution right now where every time something new comes up, we have to figure out a different way of dealing with it.
So I think the digital era is just going to keep on offering new possibilities in every direction; directions that we want to go in and directions that we don't want to go in.
>> Chris Castle: Speaking of -- I'm not sure it speaks generally about both songwriters and recording artists because you get at kind of the same way in their deals. So if a recording artist is signing with a major label in particular, but really any label, and if a songwriter is signing like a co-publishing and exclusive administration agreement with a music publisher, you typically will ask for something called marketing restrictions. And these are sometimes commercial in nature, but more often than not, they are more in the integrity range.
So you would say, for example, you can't license my recording for advertising really of any kind by the time you get through all of the different examples. You can't license my recording for a sample. You can't license my recording in certain types of motion pictures or television. You can't release my recording in certain kinds of compilation records.
So there'll be a number of these exclusions that the record just is agreeing upfront that they won't do.
Now, that really comes across in the first draft as a general rule. Now, there are things that are leverage points that go beyond that. And depending on the artist, the artist may have some particular bugaboos, you know, that they want to see written in that contract, even though you say to yourself there is no way the label is ever going to do this; but they want to see it.
And some of these are not trivial either. I mean, there was a time before the end of Apartheid where it was absolutely standard to have your artist ask to have their records not distributed in South Africa, and you'd get it. No one would argue with you.
The leverage point really comes in more whether it's during or after the term. So I'm not saying that there's not a sense of leverage and how bad they want to sign you, or if it's a renegotiation, how bad they want to give you new terms.
So realize, if you say it's during the term, then that means as long as that artist is a current roster artist, let's say, or is still in contract with a publisher, then these restrictions would apply. If it's after the term, that means forever. Right.
So when you stop and think that record companies and music publishers carry unrecouped balances that historical dollar figures do not charge interest, and those will never increase based on inflation. Telling somebody they can't ever license your recording for something that might be a nice payday that would help you get recouped and help them recover their investment is kind of a tough conversation. But it can be done, or it can be done in a limited number of circumstances at least.
So that's sort of how it's addressed, similar to the way the guilds do it. But it's addressed in a one-off because featured recording artists don't have their own union. While they may be members of the AFM or they may be members of SAG-AFTRA, they don't -- as in their capacities -- featured recording artists have anybody negotiating on their behalf in a collective bargaining agreement.
>> Maria Strong: I'd like to follow-up on your point there, Chris, about market restrictions. Earlier sessions today have talked about issues involving circumstances where the author may find their work being used in objectionable circumstances, whether it's a commercial speech issue, a political ad. I was curious to know, to those of you who are copyright owners, maybe not the initial individual artist, but can anyone chime in on your thoughts about how you want to or how do you control or somehow guide uses in those cases where maybe circumstances involve objectionable contents that you might not want to see your work associated with, your final work product?
Anyone can chime in.
>> Chris Castle: Well, I can talk about samples. Right.
>> Maria Strong: Yeah.
>> Chris Castle: I used to work at A&M Records in Los Angeles for a number of years. And during sort of the 90s where we had a lot of sort of the rise of hip hop and we had a lot of sample requests that would come in. And so we had to decide what we were going to do as a label about these sample requests and how we were going to approach it.
So basically what I decided to was I said, "OK. I'm going to take my cue from the artist who is being sampled," in other words, our artist. "And if that artist, regardless of whether they have the right, regardless of whether they're in contract, regardless of anything; if that artist wants to be sampled in this way and have their recording used in the requested way, then I will back them. I will then take over the commercial terms, you know, so I'm not completely giving up our control. But I will take my initial cue from them. And I don't care how much money they offer. I don't care what it is. If our artist doesn't want to do it, we're going to back our artist. Or alternatively, if our artist does want to do and I don't want to do it -- " which is what happened with Sting on "Every Breath You Take" that Puffy sampled, I thought, "That's like, karaoke, man. I mean, why do I want to do that?"
You know, but we did it because Sting wanted to do it. And I said, "OK. In for a penny, in for a pound. That's how we do things around here."
But we didn't have to. Right. We made a conscious decision that it's more important to us -- if we ever thought enough of that artist to sign them to A&M Records, you know, if Herb Alpert and Jerry Moss wanted to be in business with that artist, then we were going to back the artist in that situation and let them control how they wanted their persona to be replicated.
>> Maria Strong: Thanks. Others?
>> Scott Martin: I think because of the season we're in right now where you hear some of these claims is when works are used in political advertisements. And I think it's more often with music when a candidate tries to use an iconic song as sort of their anthem at rallies. And you've heard about Bruce Springsteen going after politicians who've done this. Neil Young has gone after some people.
It occasionally comes up with movies and TV where clips are being used in advertising. I would say most of it is in local campaigns: school board campaigns, local mayoral where they're creating the campaigns themselves, there's not a big budget. And either they don't have copyright or trademark advice, or they just don't think anyone is ever going to see it.
When we do get complaints in those situations, 99 percent of the time, it's from the opponent in the race.
[ Laughter ]
As opposed to the talent. And for us it's a little tricky because there is some -- our works are generally not being used like a theme of the campaign the way a song might be. So we're not as concerned about passing off.
If you're talking strictly about copyright, it might be a good fair use argument. We also worry about going after somebody who then gets elected to a very high office. I think in the 24 years I've been at Paramount, I remember one incident where we went after a national campaign, and it's because one of the most iconic, famous directors in Hollywood, his granddaughter, who actually moved in with him when she was 8 years old, because she once told me that he was a lot more interesting than her parents, was very upset in the last election, a republican running against Obama was using a clip from one of her grandfather's movies and altering the clip.
And this individual is a fairly well-known lifelong republican, so it wasn't even a political thing. She was very upset about her grandfather's work being altered and misused. And we contacted the campaign. At that point we didn't know who was going to win, so we were very friendly with them. And they agreed to stop running it. So we do ask.
>> Maria Strong: Yeah. Alec.
>> Alec French: I mean, I guess I'm going to come at this a slightly different way because objectionable is in the eye of the beholder. And Scott mentioned the Family Entertainment and Copyright Act of 2005 which I had the great pleasure of working on when I was on House Judiciary Committee. And that's a case where directors found what this company, ClearPlay, was going to do with DVD movies to be objectionable. They created software that was going to enable the consumer using the software to excise, as you said, all of the naughty bits: sex, swear words, could have also in another generation of the technology excise violence or whatever was considered objectionable.
Well, to a director, obviously, you talk about right of integrity and attribution, one, they don't maybe want to be associated with what's presented on the consumer's screen that is not their artistic vision; or two, they don't want to let someone do this, basically destroy their movie and their vision of their movie.
Now, the problem is that at that point in time the studios did not want to take a case against ClearPlay. The copyright case probably wasn't a very good one, and it was also a politically-charged time, so going against companies that are trying to clean up movies wasn't the politically smart thing to do.
But that left directors with really no recourse because they don't have statutorily recognized moral rights. And they did bring a Lanham Act claim that wasn't -- you know, they filed a suit. And of course, all of this ended up exploding into legislation that actually, as Scott said, rolled back, you know, made things worse for directors.
But the point -- and I heard this brought up, I wasn't able to be here all day -- but clearly one thing that's been discussed, and this is the core of the concern, is in a collective bargaining agreement with the studios, directors can secure certain types of rights, attribution, and integrity, and have, and can potentially even have those rights extend to parties with whom the studios are in privity. And there are areas where we've done that.
But with regards to a third party that has no privity with the copyright owner, directors don't have any ability to protect what they consider to be their rights of attribution and integrity. So there, really, when they see something objectionable, there's not much they can do about it.
>> Scott Martin: I always thought that was a very interesting act by Congress, to say that you have a right to watch a movie the way you want to watch, as opposed to just not watching it at all.
When we were making the last "Jackass" movie and I would come home at dinner and talk about the unbelievable things the Jackass boys were doing that day, and my boys who were in elementary school at the time would say, "Daddy, when do we get to see the movie?" And the answer was, "Never."
[ Laughter ]
Actually, the answer was, "You can watch it when hell freezes over or Mommy goes out of town."
[ Laughter ]
And about a year later, my wife went out of town and one of the boys said to me, "OK, we're watching "Jackass" tonight." And I said, "It was a joke." And they said, "No, it was a contract." So clearly --
[ Laughter ]
-- there's a future lawyer in the family.
>> Maria Strong: Just to follow-up, earlier today, Professor Ginsburg made some interesting observations on the possibility of taking a new look at the first prong of the Fair Use doctrine. What do you guys all think about what she said today? And how might that play into your issues in protecting moral rights for your constituencies, to the extent -- I'm saying moral rights moral rights-like.
>> Scott Martin: One thing that is interesting about that concept is I think there are a lot of different impediments to get moral rights legislation in this country. But one of the big ones I think is the one-size-fits-all mentality. And to come up with a statute that works for a photographer or an individual writer, but also works with a collective work or work where there are very strong collective bargaining rights -- if you try to have one size fits all, you're not going to satisfy all of those. And even when you look to the European examples, essentially they do not have effective collective bargaining in Europe for writers, directors, and actors. And that's partly for antitrust reasons that they're not allowed.
My wife for many, many years was head of the International Federation of Actors in London. Worked on unionizing performers around the world. And it's a real challenge for them not to organize, but to bargain collectively because of antitrust laws.
And one thing I like about the idea of working it into the fair use factor is it's not one size fits all. You would be able to look at things like is there a collective bargaining agreement, or is it a collective work. So I think that's an interesting concept.
>> Stanley Pierre-Louis: I think the other thing there would be what is this scope of what we might call moral rights. So as I said before, in the U.S. it's different than in Europe for our companies where a moral rights question -- if there's someone who's owed the right of attribution and integrity, they confer.
In the U.S., the issue doesn't come up as much, but what does come up are right of publicity claims in cases in which real life people claim to be depicted in games just because their numbers, weight, size in a game might be similar to how they actually play, and the position might be the same.
[ Laughter ]
And how do you deal with that? And is that something that gets codified in some different way than the way that it's been dealt with now? And the way it's being dealt with now is actually rather confusing. I think there was a cert petition that was denied a few weeks ago in the Electronic Arts case. But that would have been a nice way to try to figure out which of the five various tests was the one that was most applicable depending on the jurisdiction in which you bring your claim or reside.
And so I think scope is going to be very important there as well, because you're dealing not only with personalities, but historical figures, and all kinds of depictions that might require a type of licensing that might make certain games not feasible to make.
>> Roxana Robinson: I agree with the idea that it's not going to be one size fits all. And for writers -- I mean, what we're seeing is this gradual dissolution of the notion that writers have control of their work like other creators. And the idea of moral right is an inherent one. It's something that you can't lose. This is something that you have created. It didn't exist before it existed in your mind. And you have a right of intellectual ownership over that property.
And we're seeing that right being drained. And so for example, with our authors who all of whose works were put into this database without permission. The fact that piracy exists, so that the owners now -- the burden now is on the writer to try to track down the pirates, the pirate sites over and over and over, and request takedowns. And the pirates simply put them back up.
So the idea of moral right -- a kind of moral ownership of your work -- has sort of vanished. So I think we're going to have to see more attention being given to that notion of inherent right that the creator has, which cannot be taken away from him or her. And we have to figure out solutions, collective licensing rights, and situations in which it's not up to the writer to try to track down the pirates all across the world and to issue takedown notices. There has to be a better sense of protection for the created works.
>> Chris Castle: I think you'd have to square the lens case with Article 27 of the Universal Declaration of Human Rights. Which, you know, in the Ninth Circuit, we do a lot of considering, but there's not consideration.
So I think that David Lowery actually wrote a comment, and I will speak for him hopefully correctly, as he had to leave.
He wrote a comment on the 512 study that the Copyright Office is doing, where he said that the way he reads the lens case is he will essentially, as an individual copyright owner, have to go out and get a legal opinion every time he sends a takedown notice to make sure that he's properly considered fair use aspects of the use by the downstream user.
So how the moral rights issue would fit in, if that's the law and if the law is that it's fair use for Google to copy 30 million books, it's really hard to say exactly how moral rights of any kind would fit into this. But the reason I mentioned Universal Declaration of Human Rights is because that article essentially acknowledges -- although it's the Universal Declaration of Human Rights, so I don't know how much anybody legally is really empowered by that. Although it's certainly a relevant document for the good-and-evil aspect of this.
That article essentially states that everyone is entitled to the moral and material benefits of their work. So you know, if we're going to go through and explain what the benefit is to the public for moral rights, then let's start at Article 1 and kind of work our way down and see how we do.
>> Maria Strong: Thanks, Chris. I think we've run out of time for questions here from the dais, but we are going to open it up to the floor, so if the mics can get ready. As the mics are coming to you, I just wanted to let you know I received some news that the resale royalty case in California was dismissed this afternoon. Apparently the case -- it says it was preempted by first sale. So for those of you who are following royal rights, resale royalty, droit de suite litigation. There's the second interesting piece of litigation in the news today.
So we open this to the floor. We did not get a chance to talk about technology and CMI, so perhaps folks from the floor might have a question.
I'm looking. Oh. To Ben Ivans.
>> Ben Ivans: Question for Chris. You had -- if I understand correctly -- were noting that neither compulsory licenses nor collective agreements -- ASCAP/BMI consent agreements address this issue. Do you know if the songwriter community has ever sought either of those to be included? I mean, have they have said in ASCAP/BMI negotiations, "We want to negotiate this"? Have they ever talked about 115 or whatever saying this should be an additional element, or have they not pushed that --
>> Chris Castle: I'm not aware of it. But then again, the compulsory license rate was two cents for 65 years or so, you know. So I don't know why that is, but I'm sure someone has an answer for it, but it is not me. Given that it would be -- if you just applied inflation to the two-cent rate, I think the compulsory license rate would now be something like 85 cents instead of 9.1.
>> Maria Strong: Any other questions out there? I can't see. Well, with that, let's stay on tune and let's thanks the panel for their participation and --
[ Applause ]
Thank you all very much. We're going to start with the close-up session right now, so our two moderators will come right on up. Thank you so much.
>> This has been a presentation of the Library of Congress. Visit us at loc.gov.
>> From the Library of Congress in Washington, D.C.
>> Katie Alvarez: Hello everyone. Can you hear me? So, we're going to start the last session a few minutes early. Maybe we'll get out of here a few minutes early. We'll see. So, welcome to the concluding session called "Where do We Go from Here?" I'm Katie Alvarez. I'm an attorney with the Copyright Office, and --
>> Matthew Barblan: I'm Matthew Barblan, the Director for the Center for the Protection of Intellectual Property at Mason Law.
>> Katie Alvarez: And so, as you can see, this panel is a little different. We're the two moderators and you guys are all the panelists. So, Register Pallante had mentioned earlier that moral rights aren't really talked about that much in the United States and that today's symposium is the starting point of that conversation. So, now that you've had a whole eight hours to digest everything, we want to turn it over to you and hear what you think. So, what's next for moral rights? Kind of some questions that I had come up with: So, is the status quo good enough? Do we need some changes? Is that change legislative? Is there room for any voluntary or non-legislative initiatives? Also, are there any issues that came up today that are especially important to you or issues that came up that sort of raised more questions since we covered a lot? So, then to start off this conversation, Matt is going to go through a few highlights from today's symposium.
>> Matthew Barblan: Yeah. So, before we open up the open mic session, I think it's helpful just to go over a couple of the highlights, some of the things that stuck with me from today's session just to jog people's memories and to give you some ideas for comments and for your thoughts on these issues. So before I start that, I just want to say that, you know, the things that I mention are neither exhaustive nor particularly well curated. They just happen to be the things that stuck out to me, and I hope that talking through some of the comments that were made and the ideas that were raised will help all of you think of your comments for what we should do going forward or, you know, any thoughts or complaints about things that were said today and, of course, your helpful advice about what the Copyright Office should do in the moral rights space. So, we heard from a wide variety of viewpoints today. We kicked it off early on. We heard that moral rights are like the Zika virus. Ideally we would eradicate them completely but, at a minimum, we should keep them outside the U.S. [laughter]. We also heard about some of the philosophical difficulties of wedging moral rights into the United States' dynamic view of property that has historically favored unencumbered and freely alienable economic rights but about how despite that difficulty, there still is a space for moral rights in American law. We heard from artists about the difficulty in separating the economic from the moral. Attribution can be key to the development of an artist's brand and it's something that can help artists put food on the table, and a great example to take away there is that if you write a song about getting stoned, you don't want people to think that it was a Tom Petty song about getting stoned. We heard about how we might convince France to bring a WTO action against the U.S. for failure to comply with Berne's Article 10, permission to quote. We learned about the maximal monkey agency approach to authorship and how if we are going to have a right of attribution, the importance of having a solid understanding of who the author really is and who we're going to attribute to. We talked about how the Dastar case took away an already barely plausible argument we had that we were in compliance with Berne's moral rights requirements, and we discussed whether acknowledging moral rights would break the internet, and kind of the take-away there was David Lowery's quote: "If the internet is the most amazing thing ever, it should be able to withstand artists asserting their moral rights." We talked about the connection between moral rights and the incentive not just to create copyrighted works, but also the incentive to publish and disseminate those works so that other people can have access to them, whether for free or by paying. We talked about, you know, things that can step in to fulfill the role of moral rights in the absence of an actual moral rights regime -- things like collective bargaining and contract law. And then the last thing I'll leave you with before we open up the floor to comments and thoughts is we learned about why the most common artist on Sirius radio is various artists and how a robust moral rights regime could change that. So, with those thoughts in your mind, we'd love to just get ideas from people in the audience about, you know, steps that can be taken, avenues that could be researched, or things that the Copyright Office could do to, you know, delve deeper into the moral rights space.
>> Katie Alvarez: And also I know we didn't have a lot of room for questions and answers during the other sessions. So, if someone has something that they wanted to bring up earlier and didn't get a chance, now is your chance.
>> Matthew Barblan: And if nobody has thoughts, I'm happy to call on people [laughter].
>> Unidentified Female Speaker: Hi. So, I kind of come from the perspective of the artist and talking to artists about what they know about their rights. And what's interesting to me and kind of stuck out to me was when Professor Ginsburg said that most people think that they have the right of attribution when they really don't. I would say that most artists -- they get told, "Oh I don't have to respect your copyrights because I gave you attribution." And so artists are extremely confused. They think, "Oh, do they just need to give me attribution or do I still have a right if they use my image in a way I didn't want to use it" -- which says to me that there is a big need for education in this field as well.
>> Matthew Barblan: Yeah, I think that's right. I think education is key, and the confusion that can easily develop among the people that stand to benefit both from copyright and from moral rights is something that persists; and at a minimum, even if we're not going to make any changes to the law, it's helpful if people understand what their actual rights are.
>> Matthew Barblan: Alright. Sandra?
>> Sandra Aistars: So, I thought I'd maybe make a quick comment about one theme that has kept coming up and that is what's the public's benefit from moral rights? And as I listened to people answer the question over the course of the day, a couple of thoughts came to mind. First, I think if you think about what the public's benefit might be, an easy answer to that is the truth, right? We get to know whose work it actually is and how to access that person if we want to interact with him or her either in the capacity of a fan -- you know, buying tickets to David Lowery's show rather than Tom Petty's show -- or, you know, in the capacity of a potential licensor of the work. But one thing that I kept having in the back of my mind is a conversation that my clinic students and I had with photojournalist Yunghi Kim. She's a Pulitzer Prize finalist and war zone, conflict zone journalist. And this was in the context of comments we were submitting to the Section 512 study, but what she told us was that one of the things that is most troubling to her when infringements of her works occur is that the work is often misrepresented for something that it is not. So, for instance, she has a very famous image of a young boy in Kosovo and that image has been taken by various, you know, either revolutionary groups or other groups and represented as something else. One instance it was represented to be a Palestinian boy rather than, you know, accurately reflecting, you know, the truth of the matter. You hear about these stories also in other contexts. I mean when Boko Haram kidnapped the girls in Nigeria, the first thing that popped up on Facebook was an image of a completely different group of girls that was, you know, used to represent these, you know, Nigerian kidnapees. I think the public loses something if you can't rely on a photojournalist's image actually being what it purports to be. And to me, I wonder, you know, which of these rights really addresses this. To some degree I think it's an integrity issue; but, you know, the image isn't necessarily altered. I guess it's, you know, put in a different context. You know, I'm not sure that the attribution issue helps us any because just the fact that, you know, it's attributed to Yunghi Kim doesn't resolve the fact that the work is, you know, being represented in a way that's inaccurate to her subjects. So, I'm curious whether others have, you know, thoughts on how this might be addressed and whether that's something that is already kind of within the sphere of what we're talking about in terms of moral rights.
>> Matthew Barblan: And I'd add that that ties back into the point that Professor Ginsburg was making in response to one of her questions that, you know, when you're trying to justify potential legislative or other action in the moral rights space, you know, it's not just the fact that we arguably aren't in compliance with the Berne Convention, but also that there is a legitimate public interest, at least there are many arguments you can make for public interest.
>> Unidentified Female Speaker 1: I'll speak to that in the context of writers and in terms of the rights of attribution. This is something that I have been aware of during the course of time that I have been a writer, and it addresses the notion of ghostwriting and people who write with other people. And I remember 25 or 30 years ago you would see a celebrity biography and it would say, "as told to". It was Rin Tin Tin "as told to David Johnson". So, you knew it was not told by Rin Tin Tin; it was actually written by David Johnson. Then that became blurred, and now the celebrity biographies or memoirs or autobiographies all say "by Elizabeth Taylor". And, again, if we're talking about giving the public the truth, everyone knows that this celebrity didn't write the book. That's public knowledge. And yet the book is published under that person's name. So, the ghostwriter has lost all professional sense, no ownership of the work, no moral right to attribution. And I know of one person who wrote a celebrity biography and he told me -- Every time I would see him I would say, "How's it going?" And he'd say, "It's great." And I said, "Where's your name going to be?" And he'd say, "On the front of the book. It's going to be a joint biography." It came out without his name anywhere and it just gradually -- sort of the tide receded, and he just didn't get it. And I know of another one in which the writer died just before the publication, and with only the widow to protest, they just took his name off it altogether. So, the public loses there in terms of this sense of truthfulness and authenticity, and why should we be party to a system that just withdraws the sense of truth from the public?
>> Unidentified Female Speaker 2: And just to add something to the public benefit of the right of attribution, it has been the common practice in the publishing industry to provide attribution except for these ghostwritten books, which is slowly changing, but most authors write in part for the right of attribution. I think if we were to survey our members they would say that they probably wouldn't have gone into writing if they hadn't thought that their work could be attributed to them. Now mid-list writers are having a harder and harder time economically, and there are just fewer books being published on serious subjects for mid-list authors. So, many of our members, particularly members that have written many books in their 50's and 60's, are starting to write books without their name being put on the book. You know, often they're rich people who just want a book written by somebody and they want their name on the book, not the actual author's. And, yes, you will find authors willing to do this because they need to pay the mortgage; or in many cases I have friends who say they're doing this because they, you know, well their kids are in college and "then I'm going back to writing my own stuff." So, I think an important thing to remember is it's also an incentive. That's my point. It's as much of an incentive as the copyright right.
>> Eugene Mopsik: I think frequently, at least for many commercial artists, we lose sight of what the end game is in all of these discussions; and for me as a commercial artist, copyright and moral rights ultimately are I guess a means to allow me to continue to profit and to profit from my creative works. And so they're a means to an end and they're not the end, and I think in that direction we need to support efforts to -- as Nancy spoke about persistent identifiers, and it gets even more cumbersome. It's more like machine-readable persistent identifiers. So, there are identifiers that are persistent and can work in the background and don't require human intervention to enforce rights and ultimately are able to manage, or at least visual artists would be able to manage a lot of these downstream uses that we were talking about today -- the secondary uses of images, where right now it's the total Wild West and photographs are just being used willy-nilly. So --
>> Unidentified Male Speaker: Looking at it from a slightly different point of view, I'm a litigator and I do this from a more practical point of view than the esoteric; and when you have people having misattribution or nonattribution, Dastar killed us on one whole good creative set of arguments. But one of the other problems you have is the preemption. Like when I try to file, or if I'm the defendant -- I'm like 12(b)(6) -- when people try to use unfair competition or other kinds of things, I say, "Hey, it's preempted" or, you know, it's a problem I have if I want to plead it because this is all subject of the Copyright Act, and it is not included. So, the various different kind of creative elements or arguments that one might make I'm not real sure that, because of the preemption, that they would get very far. So, just a practical thing there.
>> Matthew Barblan: Someone in the back.
>> Mira Sundara Rajan: Hi. My name is Mira Sundara Rajan. I'm a professor of Intellectual Property Law at the CREATe Copyright Center in the U.K. and I've written a not insubstantial book entitled Moral Rights: Principles, Practice and New Technology -- for that reason I have a number of thoughts but at least a couple of which I'd like to share in the limited time that we have available. One of them is that I've been listening with a lot of interest to these comments about what is the public interest in moral rights, an issue I talk quite a bit about in my book, and I think it's a key question that we need to be able to answer. You know, we heard from the authors. We know how they feel about it. We know to some extent how our middle men feel about it. How does the public feel about it? And for me the important point that we need to remember is that all works eventually end up being owned in a sense by the public. They go into the public domain, all copyright works, and that idea was expressed by Victor Hugo, who said that the true heir of any writer is ultimately going to be the public. And I think when we think about the issue of moral rights, it's helpful to keep that in mind, that preserving the attribution of works, preserving historical truth, preserving the integrity of works that are in the cultural domain is something that ultimately is a matter of importance for every citizen of a country. Another issue here that may be apt as well is that American artists are in a curious position because when you go out of the country with your work -- Let's say you go to France -- your moral rights are recognized. And yet here in the United States at home, you don't have the same rights that you enjoy in foreign countries. And I'm Canadian; we have moral rights. If I were an American creator, I think I'd be quite upset about that situation. So, I do think that there is some national pride, cultural pride involved. And maybe that goes to a final interesting point, which is what we're talking about here is cultural diversity. Well, let's not forget that cultural diversity also exists in the law and that has been maybe an interesting backhanded development as far as the relative exclusion of moral rights from TRIPS' concern because countries have adopted moral rights in keeping with Berne and TRIPS, but there is tremendous diversity in how different countries have implemented moral rights. I mean literally it would be difficult to find two countries that have done it the same way, and you have everything from the U.K. situation, where you have to assert your right of attribution before you can expect to have it recognized, to the situation in India, where rights of integrity are protected forever. Why are they protected forever? Well, the Indian copyright registrar told me that amendment was brought in for a specific reason -- because the interest of the public in the preservation of the cultural domain was considered to be so important that integrity had to be legislated for time immemorial. So, you have so many different approaches, and I think that at least should be very encouraging here in the United States because there's so much that can be done to recognize moral rights and yet to give them a shape that makes sense in the cultural, technological, social, economic context here in the states.
>> Matthew Barblan: Thank you. And can you remind us of the title of your book?
>> An easy question to answer. It's called Moral Rights [laughter], the key words being new technology, and it's published by Oxford University Press, just about to come out in a second edition. So, please don't try to buy it until a few more months go by [laughter].
>> Matthew Barblan: Any more comments or suggestions?
>> Katie Alvarez: We have one hiding behind the pillar here.
>> Matthew Barblan: Oh, excellent.
>> Unidentified Female Speaker 3: I just wanted to speak to a form of expression that I hope becomes part of the conversation moving forward and that's dance. I think the absence of that in the conversation today is probably -- it's illustrative of the sort of lesser degree of pervasiveness in culture than something like music or books, but that was I think largely an accessibility issue in the past. And with, you know, an increased focus on digitized entertainment and technology and with content hosting sites, I think dance finally has the means and window of opportunity to be able to reach a broader audience and disseminate their work on a greater scale. In terms of protecting the rights of sound recordings and musicians and performers, I'm hoping that dance will be a consideration so that they can take advantage of this opportunity and finally, you know, have their moment and push their way into society and culture and become more pervasive.
>> Matthew Barblan: And Brad, we have a question over here on the left.
>> Unidentified Male Speaker 2: Yeah. Just one or two quick thoughts. One is that the discussion has talked about incentives a good bit and interests of various groups, public or other maybe. But the term itself, moral rights, you know, both of those words are very interesting and useful, too; and I think, you know, going forward fuller use could be given to both of those terms and, you know, I think of the, you know, sort of historic American principle in American law that rights are not only something that government would give or take away on a whim or based on a particular interest, but that there are certain rights that -- and here I think there was the quote earlier on about, you know, a person being entitled to the fruits of their labor. So, I don't recall exactly the quote. But the other point that I was going to raise was that law can have a teaching function also so that even if there's not a very elaborate complicated system that is put in place right away, giving some protection to moral rights can help to remind people that this is something that is something to be valued, you know, because I think so often if the law doesn't require something, they'll you know, give a copyright notice or something but they won't give recognition to the authors because there's no feeling that they should do so.
>> Matthew Barblan: Thank you.
>> Katie Alvarez: Anyone else?
>> Matthew Barblan: Ah, you got one in the back.
>> Katie Alvarez: One in the back.
>> Melvin Gibbs: It's more of a comment than a question. I was just thinking about the two panels ago contrasting the public art, the mural, and the relationship of public art to moral rights as opposed to the relationship to the digital arts. I was thinking that in terms of my own comments about how moral rights relate to communities and I thought that was a very interesting illustration of the difference between when you have something that's based in the community and how people relate to the rights as opposed to when it's just floating around digitally. And it's interesting that dance was brought up because dance is in a sort of middle position right now -- well, talking about street dance in particular, which is one area I'm interested in. It's still a community but it's kind of like a worldwide community and attribution -- everybody kind of knows who's making up the steps because they're getting uploaded so quickly but they're also getting disseminated very quickly at the same time. So, I'm wondering -- it seems like maybe that's an actual beginnings of solution of crossing those things -- looking at dance might be a way to kind of think through an actual solution there.
>> Karyn Temple Claggett: Any last minute thoughts, comments, questions?
>> Matthew Barblan: We have two more -- Alan and Mary.
>> Mary Rasenberger: I have a question for everybody here and that is after seeing Scott Martin's presentation on the different laws around the world -- At lunch we were talking about, you know, need for unification of IT laws. Is there any interest in an international treaty on moral rights? [inaudible]
>> Karyn Temple Claggett: Other than the one we already actually have [laughter].
[ Inaudible Speaker ]
>> Matthew Barblan: Allan?
>> Allan Adler: This is a question I probably should have asked to session five when they were up there, but it occurred to me one of the major developments, at least for my industry, since moral rights was the source of major discussion here in the United States is the fact that the internet has given rise to a new generation of self-publication. And I'm just wondering in that environment where the author essentially also becomes the publisher and the person chiefly responsible for distribution of their own work, if that makes a difference in the calculations that people would make about -- Well, certainly I think it would with respect to integrity issues but I'm wondering if it would also make a difference with respect to attribution issues as well.
>> Karyn Temple Claggett: And the last comment?
>> Unidentified Female Speaker 4: Good afternoon. It's not comments, just an inquiry. I'm not a lawyer. I came to attend this symposium; it's a course for me. So, I was reading each speech for moral view. So, I have a question. I was trained as a biologist. So, in the international collaborations I see some lack or gap between the piracy and the law. So, here we talk all day about law, copyrights law, moral rights law, attribution. But how about piracy? Here I would like to present to you a scenario from the U.S. Office of Research Integrity. I would learn a few months ago in this office there's a policy of plagiarism, if put in this room would be plagiarism, but there they didn't see it as plagiarism, but authorship dispute. They say that the ORI, the Office of Research Integrity, considers many disputes between the collaborators on the same research project as an authorship dispute or credit disputes rather than plagiarism. So, I would ask your insights. How could make the interaction between policy and the law? Thank you.
>> Karyn Temple Claggett: I don't think we're going to answer that question today.
>> Matthew Barblan: But thanks for raising it [laughter].
>> Thank you. I want to thank the panelists from the last panel and the audience. I also want to thank all of the panelists who've been here throughout the day as well as the audience. I think, as I said, when I first started the overview session I didn't know whether we would actually have enough to discuss for a full day of moral rights in the United States, but it not only showed that we actually have a lot to discuss but a lot of important information and it really showed how strongly people believe that especially the moral rights of attribution and integrity are to individual authors. So, you've given us a lot to think about. As I think Register Pallante mentioned at the beginning of the day, this is only the beginning of our conversation. We'll now take some of the things that you guys have said today and use that to actually ask more specific questions in terms of what should we do next as we analyze moral rights in the United States and we consider how best do we actually protect both individual authors as well as the public in terms of wanting to know who creates the work and how the work is being used. So, thank you again for participating and thank you all for coming.
>> Matthew Barblan: Thanks Karyn.
[ Applause ]
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