In Artists Rights, Copyright, Copyright Infringement, Google Book Search Settlement, Illustrators Partnership, Orphan Rights, Orphan Works
For the last several days, we’ve been responding to queries about the announced “class-action” lawsuit by “visual arts” organizations against Google in the matter of the Google Book Search project. Some perspective:

The organizations suing Google are the same visual arts groups that lobbied for passage of the House version of the Orphan Works bill. That bill would have created commercial registries that artists would have to patronize to protect their work from potential orphan status. It would also have created a Dark Archive where infringers could register their right to infringe work.

The Google Book Search settlement involves an agreement in which two US organizations would consent to Google’s mass infringement of books by the world’s authors in return for multimillion dollar cash settlements for their organizations and payouts of $5 to $60 to the infringed authors. In return Google would continue scanning, create yet additional commercial products without the prior consent of rightsholders, control future markets and create a Book Rights Registry of “orphaned” books. The settlement has been condemned by the US Justice Department, the US Copyright Office, several countries and by authors and publishers around the world.

One of the chief objections to the settlement is that the plaintiffs do not have standing to trade away the rights of the world’s authors as a class action. The US Government has filed two formal statements against the agreement, noting that procedural rules cannot be used to modify rights: 

“[T]he amended settlement agreement suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation“. (Emphasis added)

We commented on this case last fall. It’s currently under review by the United States District Court for the Southern District of New York.

Copyright is an Individual Right 
Let’s reassert the basic principles we’ve held to since we started the Illustrators’ Partnership:

·  We believe that copyright should be maintained as an individual, not a collective right.
·  As such, we will not make claims to represent the copyrights of others without their consent; and

·  We don’t recognize the right of any organization to represent our copyrights without our consent.   

To be specific: We do not recognize the right of any organization to negotiate with, trade away or permit infringement of our copyrights for any purpose without our consent, either to enter into agreements with third parties, or to be named as an Orphan Works registry, or for purposes of collecting our reprographic and digital royalties, or for condoning the mass infringement of our works for a “cut of the action.”

The Google Book Rights Settlement and the Orphan Works Act have highlighted the age-old problem of separating individual rights from the collective. The ability of large internet interests to build empires by aggregating the work of individuals and licensing that work as a “service” to the public has created a tempting business model for opportunists eager to cash in and clothe their self-interest in the language of altruism. The land rush for creators rights as a collective right is on.
Copyright is a property right and is the exclusive right of the author. 

We’ll have more to say about this in the future.

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