ASMP and CCC

The American Society of Media Photographers (ASMP) and Copyright Clearance Center (CCC) will be launching a series of 10 free webinars on the “The Future of Art & Commerce” on October 5, 2011 between 1:00 and 2:30 pm EST.  In the first session Susan Carr and Richard Kelly will deal with What Everyone Should Know About Copyright. Click here to register for this event. For details on all 10 webinars which will take place about every other week through March 2012 click here.

The webinars are designed to educate users as well as creators on the licensing and monetization of content and are designed not just for photographers, but to reach into the corporate user/publisher world. So far over 1,500 individuals have registered for the first webinar and approximately 60% of those registered are users of content, not photographers. This interest has far exceeded expectations.
 
While one might think that more education about copyright would generally be beneficial to both photographers and image users, there has been a lot of web discussion about whether ASMP should be involved with CCC in this endeavor. Before dealing with that question some background is necessary.



Reprographic Licensing – How It Works

There are some small uses like student photocopying in a university library where it is impractical for the licensee to seek out the licensor every time they want to make a copy and pay the licensor a fee for that right. This is recognized in all copyright law. Reproduction Rights Organizations (RROs) or “collecting societies” have been set up by law to license reproduction of copyright-protected material whenever it is impractical for rights holders to act individually.
 


These organizations were instituted in response to the need to license wide-scale photocopy access to the world’s scientific and cultural printed works. Organizations such as schools, institutions, corporations and other types of organizations pay fees to RROs in return for a blanket license to photocopy all manner of printed material. However, the tracking is not as specific as some creators might like. In some cases the customers searches a database of publications by ISBN or publisher name. If they want of photocopy 5 pages from a book or one article from the New York Times of a certain date there is no way to tell who wrote the specific article or how much of the work included images, and who created those images.
 
In most cases instead of doing an individual search the customer pays an annual fee for a “blanket license” that permits unlimited photocopying of all materials covered in the RRO’s database. Not all publishers allow their work to be photocopied in this manner, but most do. Consequently, the RRO databases are huge that most customers operate on the principle that all works are covered, whether or not that is actually the case.
 
The reprographic license acts as an insurance policy, protecting the purchaser against possible lawsuits for copyright infringement. The copyright laws of various countries provide for this method of licensing limited uses of copyrighted materials.



In a small percentage of the cases funds are collected for the work of specific individuals and those individuals are compensated directly. But, due to the nature of blanket licensing, most of these funds are deemed “non-title specific,” which means it’s impossible to determine the specific amounts due particular authors. In some countries, Canada, for example, fees are dispersed to authors proportionately. In other countries, such as England, royalties are apportioned according to the volume of an artist’s published output. In still other countries members vote to use these funds to advance their collective interests.

European Collecting Societies

Each country in Europe has its own collecting society. Laws differ from country to country, but from a creators point of view European laws which include “moral rights” are generally stronger than those in the U.S.
 
Moral rights were first recognized in France and Germany, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928. They include the right of attribution, and the right to the integrity of the work which bars the work from alteration, distortion, or mutilation. Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright to a third party, he or she still maintains the moral rights to the work. While the United States became a signatory to the Berne Convention in 1988, it still does not completely recognize moral rights as part of copyright law.
 
In general the Europeans have also made a greater effort than the Americans to distribute the funds collected in a way that benefits creators.

Authors Coalition of America

The Authors Coalition of America (ACA) was incorporated in 1994 to collect money from various foreign and domestic Reprographic Rights Organizations (RROs) and distribute it to their Member Organizations. ASMP is one of 22 member organizations that receive funds from ACA. The ACA has received funds from RROs in Norway, Austria Germany, Sweden Finland, Spain ,Belgium ,The Netherlands, Switzerland, Denmark and Australia, but none from the United States.

Given that most of these funds made available to the ACA were collected through blanket licenses, the RROs have required that they be used for advocacy or education that benefits the general creative population and not distributed to authors individually. Absent information that would specifically identify an author there is no fair way to determine which authors should receive what portion of the available funds.

Broadly author means any creator writer, photographer, illustrator, songwriter, playwright, composer, lyricist, or visual and graphic artist whose works can be reprographically or otherwise visually reproduced. Everyone agrees that this is far from a perfect system, but maybe better than doing nothing.

For more about what ACA does see http://www.authorscoalition.org/repro/index.html

Copyright Clearance Center

The CCC was formed at the direction of Congress to deal with reprographic license issues that resulted from changes in the 1976 copyright act. At that time the licenses dealt entirely with published work that could be photocopied, but with the development of the Internet certain online uses of copyrighted material are also licensed by the RROs.

The CCC is a global rights broker for millions of the world’s most sought after materials, including in- and out-of-print books, journals, newspapers, magazines, images, blogs and ebooks.

By using either the publication name or ISBN number customers may go to www.copyright.com and search the CCC’s database of close to 2 million works from 10,000 publishers.  Once a specific publication has been identified and the specific types of use indicated a fee for that use is provided. Users can also purchase annual licenses that let them:

•    Share content from millions of journals, blogs, newspapers, e-books…
•    Exchange information through email, hard copies and intranet postings and more
•    Advise colleagues on their content usage rights in real-time
•    Minimize their organization's copyright infringement risk
•    Save money by reducing time spent pursuing permissions
•    Add the “Multinational License” to extend coverage worldwide

In 2010 CCC took in $215 million for rights clearance and distributed $154 million to rights holders. (See their annual report.) While not all the rights licensed are for visual content (much is for written works) at least one European RRO has calculated that 12% of the revenue collected should be distributed to image creators. If the CCC used the same formula that would mean that $18.6 million should have been distributed to the 22 ACA organizations and the foreign RROs for that portion of the works created by individuals from their countries.

Publishers whose works are registered in the database receive royalties when their specific publications are identified. They also receive a proportional share of all the blanket license revenue collected. CCC claims that they have written assurance from their publisher members that these members have total rights to license reprographic rights to their work and that when necessary, they -- the publishers -- forward appropriate payment to the correct rights holders. Unfortunately, there is no evidence that any of the funds paid to publishers have ever filtered down to individual photographers, as a separate payment beyond what the photographer was paid for the original license.

ASMP

ASMP believes photographers are entitled to benefit in some way from the funds CCC has been collecting and distributing to publishers over the last 35 years. ASMP first started receiving money from foreign RROs through the ACA in 2004. Since that time ASMP has received in excess of $2 million. Grants totaling $455,000 have been distributed to a variety of advocacy and educational organizations. Portions of the monies have also been used to support other ASMP sponsored advocacy and educational projects. None of the monies are used for ASMP operations. A full list of how the money has been distributed can be found here.

What Are The Options

Based on what has been going on for some time it is worth examining some of the options available to photographers.

1 – Boycott CCC – ASMP and photographers in general could refuse to have anything to do with CCC until the organization starts paying photographers individually for use of their work. However, it seems unlikely that there will be any change in CCC’s current strategy unless some type of dialogue or negotiations are initiated.

2 – Bring legal action – Seth Resnick, Paula Lerner and Michael Grecco tried this in 2002 and got nowhere. Maybe there is some other legal strategy that might be more successful. But it seems that the way the copyright law is currently structured, and the fact that CCC has paperwork from all the publishers stipulating that they have the right to license reprographic rights to the work, it may be a very tough case to win against CCC. At the very least photographers will need to put together a huge legal fund because the CCC and publishers have deep pockets and will be prepared to spend a lot of money to maintain the status quo. The winners will be the lawyers.

3 – Go to Congress and get the copyright law changed – In theory Congress could give the Copyright Clearance Center (CCC) more specific direction about how they are to collect data (a big part of the problem) for reprographic uses, and how they must distribute the monies they receive. But, when Congress can’t decide whether or not to close down the government, or whether they will provide funds for disaster relief, does anyone think they will have time to deal with whether or not photographers are being paid for the use of their work? The good news in all this may be that Congress probably won’t have the time to deal with the Orphan Works legislation before the 2012 elections. Thus, maybe we have a little respite on that issue. If, despite all this, photographers still  think the copyright law needs to be modified then the first thing they need to do is start putting together that huge legal fund because it will cost a lot in legal fees to pursue this action.

4 – Look for Common Interests - There is new leadership at both ASMP and CCC since the earlier law suit was filed. Maybe there is a chance for a new dialogue. Maybe image creators can’t get everything they want or everything they think they are entitled to, but maybe there is some way for the two organizations to work together on common interests. The copyright webinars are one example. Both organizations have an interest in raising the level of public understanding about copyright. ASMP wants to get the message out to photographers, the CCC to publishers and both to customers. By working together they may be able to prepare a more extensive program and reach a wider audience -- both buyers and sellers -- than either could do individually. It is hard to resolve issues with anyone if you can’t find a way to talk with them.