ASJA Responds to the U.S. Copyright Office Regarding Moral Rights for Writers

Before the
COPYRIGHT OFFICE, LIBRARY OF CONGRESS
Washington, DC

Notice of Inquiry: Study on the
Moral Rights of Attribution and Integrity
FR Doc. 2017–01294; Copyright Office Docket Number 2017-2)

COMMENTS of the
American Society of Journalists and Authors, ASJA



The American Society of Journalists and Authors, ASJA
ASJA.org 

March 30, 2017

 

About ASJA

Founded in 1948, the American Society of Journalists and Authors, ASJA, is the nation's professional organization of independent nonfiction writers. Our membership consists of nearly 1,200 outstanding freelance writers of magazine articles, trade books, and many other forms of nonfiction writing, each of whom has met ASJA's exacting standards of professional achievement.  To be eligible for membership, a writer must have produced a minimum of six full-length articles in a nationally circulated publication of some standing, or have two published books.

ASJA’s organizational responses to requests for comment such as this, as well as our advocacy on policy matters, are by individual members who are themselves working writers.  

Overview and Introduction

We welcome the interest of the Copyright Office in a conversation about the moral rights of authors, and hope you will share comments and your resulting conclusions with Congress.  Increasingly, communication and publication are via the Internet, which knows no borders.  American writers need to have their moral rights specified and safeguarded, and they need effective, accessible redress when they are violated.   Only Congress can provide the means.  

Recently, ASJA members, many of whom write for print and online magazines and other publications on a freelance basis, are noting something new in their contracts with publishers:  clauses saying they waive any moral rights claims to their work or the management of it.  We assume this is happening because publishers want to use what our members write internationally.   Although the United States is a signer of the Berne Convention and the WIPO treaty, both of which acknowledge the moral rights of authors, writers in this country have no explicit moral rights protections -- but they should.    

We disagree with the premise that current laws are sufficient to protect American writers, especially now.   We find the very idea ludicrous.  

Our members report that they often find all or part of an article, essay or blog post (as well as other works) copied without permission or attribution, and plopped down on a website.  Or, part of a work is copied and then used to further an argument that may or may not agree with the premise of the author’s original work.  

As ASJA member Brooke C. Stoddard notes,

“The more our work is made available online, the more it is likely to be used in ways that we find distasteful.  Nonfiction writers assemble and present facts. Online persons can copy these, even legitimately under "fair use" laws, and present them or use them in ways the authors find misleading or repugnant. These chunks can then be spread exponentially over the Internet.

“True, as soon as an author has "published" a work, it is available to the public and susceptible to copy in part and susceptible to argument, but a copyist pre-Internet had to either type a copy or photocopy, neither of which would lead quickly to mass circulation. Accordingly, the Internet and current fair use practice can -- compared to pre-Internet -- offend the "moral rights of authors."

Currently in the United States, if the rights to the work have been licensed or sold, the author has no standing when asking that he or she be acknowledged as the original author.  If the meaning of the work has been distorted, the author similarly has no right of redress or a means of obtaining it.    

If the author retains the rights to the pirated work, he or she may employ the Digital Millennium Copyright Act (DMCA), assuming the owner of the offending website may be located.  The burden of proof of ownership is on the author, who also must track down the pirate and initiate contact.  The success of using this tool is exceedingly limited. (And some members tell us they could spend a day or more each week on these notices alone, so frequent are the piracies.)  Beyond it, there is no effective redress.  That is true for the myriad international pirates who routinely steal everything from blog posts and essays to entire books with impunity.  It is all the more likely to be the case if the work turns up on a website that is part of a U.S. or international corporate entity.  

Also, consider what may seem a digression, but really is not: how social media sites routinely take copyrights when any user checks “I agree” to their terms and conditions of use.  Many such sites postulate that the individual user keeps the rights, while simultaneously stating the social media site has the right to use anything posted.  Terms of agreement for social sites generally don't provide the right of attribution.  Integrity is not addressed and the right of withdrawal is laughable.  A user against the might of a multi-billion-dollar corporation?  

Individual authors can’t afford to use the courts to defend their good name, the integrity of a work, or the taking of it.  If the work in question has been licensed or sold, or written as a “work made for hire,” there is no possible redress through the courts even if the author has the stomach and the financial means to afford the undertaking.    

Currently, no American writer can say “I wrote this, and I have a moral right to have my name appear on it,” unless a work is published in another nation, one in which the moral rights of an author are spelled out in law.   Since publishers are now inclined to have writers contractually waive moral rights before the fact, and most writers must sign contracts in order to eat, American writers have no moral rights.  

A right one can’t access is not possessed.

Congress needs to pass legislation defining the moral rights of authors, preferably per the Berne Convention, and providing for redress.  

Comments on a specific questions in the Notice of Inquiry

(1.)   “Please comment on the means by which the United States protects the moral rights of authors, specifically the rights of integrity and attribution. Should additional moral rights protection be considered?  If so, what specific changes should be considered by Congress?"

ASJA does not believe the laws of the United States currently address the moral rights of authors.   The rights which writers do possess in our country are rights as they pertain to a specific work.   Moral rights inherently adhere to the author.  

The best course of action would be for Congress to codify moral rights in language that aligns with that used in the Berne Convention for the Protection of Literary and Artistic Works, as amended; and also, the WIPO Copyright Treaty. This would have the advantage of protecting American authors while simultaneously bringing the United States into compliance (at least, with regard to moral rights) with treaties it already has signed.

Especially attractive to ASJA:  in Article 10(3) of Berne, an author retains the right to attribution even when a work is altered by contractual agreement.  Moral rights should not be tied to money.

Specifically, ASJA would like to see in U.S. law:

1. The right of attribution (the author's name is always associated with a work);

2. The right of integrity (changes to a work without the author's express permission are prohibited); and

3. The right of withdrawal (the ability to keep a work with the author’s name on it from being published, if the author and publisher cannot agree on the contents.)

ASJA member Todd Pitock observes:

“Contracts typically have three clauses that affect moral rights. One is the publication’s right to edit, abridge, etc. This gives a publication control over a work. Another typical clause gives the publisher the right to use the author’s name and likeness.  As a matter of fairness, if the publisher and writer can’t agree on the final edit, at the very least the writer should have the right to take off the byline without surrendering the fee...

Indemnity and warranty clauses in contracts ask the writer to hold the publication harmless and take [financial] responsibility in the event someone sues.  These clauses are often very broad… All of these clauses are interrelated and problematic.

“In the first case the writer surrenders control. As a matter of custom, in my experience, most publications will show a writer the edited work and be open to changes and revisions. Some do not. Either way, the contract leaves the matter exclusively in the hands of the publisher. Then, notwithstanding the writer’s lack of control over the work or how it’s published, the right to use his name/likeness attaches him to it, even if he feels his work has been distorted, either through re-wording or cuts that effectively damaged the work, or by actual changes, or by mistakes that result from words that are inserted or deleted, intentionally or otherwise.

“The indemnity clause then holds the writer responsible even if the work does not reflect what the writer delivered to the publisher.

“Some writer advocates have encouraged writers to insert “to the best of their knowledge” or otherwise limit writer’s liability to conscious choices.  Many publishers have objected even to that, on the grounds that they don’t want to be responsible for a writer’s negligence. But that doesn’t stop the publisher from insisting the writer be held accountable for editorial negligence, including the failure or refusal to show the writer the final, edited draft.”

(2.)"How effective has section 106A (VARA) been in promoting and protecting the moral rights of authors of visual works? What, if any, legislative solutions to improve VARA might be advisable?"

It is our understanding that the United States recognizes moral rights (although only attribution and integrity) for visual artists through VARA (the Visual Artists Rights Act of 1990), but not for authors.

So we ask, why should one sort of creative work get moral rights protections, but not others?

(3.) "How have section 1202’s provisions on copyright management information been used to support authors’ moral rights? Should Congress consider updates to section 1202 to strengthen moral rights protections? If so, in what ways?"

To the best of our knowledge, Section 1202 has never been used to support author’s moral rights and is unlikely to be used in that fashion.  In it, the attribution of rights is tied to who owns or is licensed to use a particular work.  

As noted above, the moral rights of an author are not tied to money and do not begin or end with a contract.  We need a law that defines our moral rights, in and of themselves.

4.)"Would stronger protections for either the right of attribution or the right of integrity implicate the First Amendment? If so, how should they be reconciled?"

Thousands, perhaps hundreds of thousands of times, U.S. courts have reconciled the First Amendment and challenges to the assignment of economic rights and thorny questions of “fair use.”   The courts also routinely deal with the interpretation of the Constitution in juxtaposition with the many treaties our nation has signed.  

We have no reason to anticipate that our courts would have any difficulty integrating protections for the moral rights of authors with the First Amendment.  

(5.) "If a more explicit provision on moral rights were to be added to the Copyright Act, what exceptions or limitations should be considered? What limitations on remedies should be considered?"

Berne does not contain exceptions to the moral rights of authors.  Neither should any new version of the Copyright Act (or any other relevant law) containing a moral rights provision.

Specifically, ASJA asks that any remedies not be tied to the registration of a work, or to any assignment of economic rights.  The moral rights of an author are inalienable.    

Also, in light of the way the Internet works and the many handy “apps” available, we challenge the idea that an author should solely be responsible for discovering and confronting a publisher, especially in the matter of attribution.  

Every English teacher can use one of many “apps” that will predict the likelihood of whether a student has plagiarized part or all of an assignment.  When filling out forms online, surely all of us have had a message in red pop up, saying “Oops!  You didn’t fill in a required line.”  Social media sites use algorithms that routinely troll for hate speech.  

To the extent that is technically feasible (which will continue to evolve), we should automate the protection of authors. Websites could and should routinely have an app installed that says “Hey!  You didn’t say where this passage originated!”  Or, “author name required before publication.”  

With luck, and if Congress does codify the moral rights of authors, perhaps the technical ease of protecting author’s inherent rights eventually will counterbalance the present easy piracy.  

(6.) "How has the Dastar decision affected moral rights protections in the United States? Should Congress consider legislation to address the impact of the Dastar decision on moral rights protection? If so, how?"

Dastar Corp. v. Twentieth Century Fox Film Corporation. ("Daster") was brought in Federal court under the Trademark Act of 1946, commonly known as the Lanham Act.   Laying aside that it inevitably cost both corporations legal fees in the millions of dollars -- not a sum authors typically have handy for the protection of their rights -- alleging economic damage is necessary to bring suit under the law.  A writer, and especially a writer who has assigned the rights to her work, couldn’t possibly have standing.  

The Lanham Act seems an unlikely home base for a defense of authors moral rights.  It was written to protect the selling of tangible goods, not to protect copyrighted works or intellectual property.  While both Daster and an earlier ruling, Gilliam v. American Broadcast Company, address the distortion of an original work, they do it because the change threated commercial value, not because the creators of the works had any moral rights over what happens to them.   In Gilliam, Terry Gilliam sued the American Broadcasting Co. (ABC) because he disliked the way ABC had edited his Monty Python programs.  The 2nd Circuit Court of Appeals found for  for Gilliam,  saying the changes amounted to unfair competition.  Moral rights were not addressed, only economic rights.   

Although it still would be a stretch, a better home might be within the Federal Trademark Dilution Act of 1995.  A writer’s byline could be considered a type of trademark, and it might be possible to argue that by not including it, a defendant shows the absence of good faith and/or is attempting to confuse consumers.  For instance, in Jews for Jesus v Brodsky,  the District Court ruled the name and reputation of a long-existing group was being used as a “lure” by the very similar name of a new website, one which had an opposite philosophy.  It was a trademark violation even though the trademark violated -- the name of the older site -- was not identical in many ways to the new one belonging to the defendant.   The court found for the plaintiff.  But there again, the overarching theme of the law is commerce.

In our view, the most direct way to embed the moral rights of authors within our laws is to specify them within the Copyright Act as it undergoes revision.  

(7.) "What impact has contract law and collective bargaining had on an author’s ability to enforce his or her moral rights? How does the issue of waiver of moral rights affect transactions and other commercial, as well as non-commercial, dealings?"

Freelance writers don’t bargain collectively; it’s dangerous territory due to our antitrust laws.   

One could argue that writers sometimes choose a Creative Commons license for their work because they wish to assert their moral right to have their name stay on it, and also wish that it not be adulterated.  (The latter is indicated by adopting a “no derivatives” Creative Commons license.)   Commons licenses all include a provision for attribution, and one cannot use them without agreeing to make the work accessible, free.  

From where we stand, as writers making a living by our words, using a Creative Commons license is a luxury out of our reach except in rare instances.  They are for people who have incomes provided by some means other than their writing alone.   If such licenses are, or become, the accepted way for authors to assert and protect their moral rights, a majority of working writers are left out.  And, the writers who do opt to use a Creative Commons license are locked out of the courts, because there is no possibility of economic damage.

All these things are manifestly unfair.  Another legal framework is needed, one accessible even if a writer sells a work.  

It also is manifestly unfair that in the United States, contract law always overrides a moral code that has existed for many centuries.  The name of the creator of a work should stay on it unless both author and publisher intentionally waive that right.      

 (8.) "How have foreign countries protected the moral rights of authors, including the rights of attribution and integrity? How well would such an approach to protecting moral rights work in the U.S. context?"

It is our understanding that most nations that have signed the Berne Convention have statutory moral rights protections for authors, and remedies available for moral rights disputes.  As we noted in responding to the First Amendment question, we have no reason to believe that U.S. courts could not integrate a new statute specifying moral rights.   The courts of other countries routinely do so.  

We anticipate that members of the International Federation of Journalists (IFJ), the International Authors Forum (IAF), and the International Federation of Reproduction Rights Organizations (IFRRO) will respond to this Notice of Inquiry. We hope they will explain how moral rights laws work in “real life.”    

(9.) "How does, or could, technology be used to address, facilitate, or resolve challenges and problems faced by authors who want to protect the attribution and integrity of their works?"

Please see ASJA’s response to Question 5, in which we suggested that technology be employed to “remind” publishers to include an author’s name.  

Although we think automated “reminder” apps could be helpful – particularly if their use becomes so widespread that it becomes a norm -- we’re not clapping for Tinkerbell.  ASJA does not for a moment believe that voluntary use of apps will occur absent a specific codification of author rights in U.S. law.  

(10.) "Are there any voluntary initiatives that could be developed and taken by interested parties in the private sector to improve authors’ means to secure and enforce their rights of attribution and integrity? If so, how could the government facilitate these initiatives?"

The playing field has always been tilted against authors and toward publishers -- the folks with the checkbooks and the power.  The tilt has accelerated now that we’re in the digital age. We writers cannot educate or plead our way into protecting rights that U.S. laws don’t explicitly give us.  Publishers will never act against what they perceive to be their economic interests.  If U.S. publishers had not noticed that authors have moral rights protections elsewhere in the world, they would not presently be asking – insisting – that American writers contractually waive moral rights.

We note that widespread author attribution and a limit to distortion, both of which are inherent in moral rights codes, could go a long way toward eliminating “fake news.”  Thus, codifying the moral rights of authors would be in the public good, as well as being a protection for authors themselves. 

(11.)   "Please identify any pertinent issues not referenced above that the Copyright Office should consider in conducting its study."

First, “fair use.”  None of us can recall ever seeing any reference to the moral rights of authors in a fair use case.  Similarly, “work made for hire.”  Berne says moral rights of authors still exist, even in contracted work.  That will not be true in the United States until our laws make it so.

Also, we note that present remedies open to authors are spotty and burdensome.  Use of the courts for a violated contract or an infringed copyright is closed to most writers because of the immense expense involved.  The right might as well not exist.  Writers also are inhibited from asserting their rights in that now, professional associations can’t bring class action suits.  

A small move towards equity would be to dispense with copyright registration.  If you do not, please make it easier to register, and free.    

ASJA also would like to point out that, in the digital landscape, having your original blog post or other work picked up without your explicit permission is not always a bad thing.  However, the way the marketplace presently works, there would be less risk to author incomes and reputations if we had a moral rights law.  

Past president and blogger Minda Zetlin says she see no downside, and considerable merit to codifying moral rights: 

“As someone who makes more than half of my living these days being paid by the page view, I probably have a different outlook [than many writers.]  When my work gets shared over social media, that's good. In fact, I encourage and reward it (at least on Twitter, schedule permitting.)   Social media drives traffic to my pieces…  It also lets me know that I've written something people find worth reading (as opposed to being lured in by a clever headline), and it allows some pieces to keep getting traffic year after year.

“On the other hand, a large number of websites simply pick up stories I've published and drop them onto their sites whole hog, byline and all (and I'm assuming some do it without the byline but I have no way of knowing that). Occasionally I’m even asked for permission.  [The publisher…] has told me they don’t mind who republishes items so long as they are attributed.  Since their contract with me gives them the right to re-license my work, that's up to them, not me.

“[The publisher also seems]... to have agreements with big sites allowing them to do this -- I've been "published" on Business Insider and Time.com and Huffington Post without my consent or knowledge.  And of course I don't get compensation for the sometimes hundreds of thousands of page views these sites get for my work.

“I've heard of libraries scanning works but hiding the bylines first so pesky writers couldn't find them and make demands.  So I think right of attribution is something we absolutely need.  Controlling our work on the Internet is a joke under the current system.  Moral rights (if enforceable) would change things a lot.”

Conclusion

The writer members of ASJA thank you for the opportunity to join your conversation on this matter.  If we can answer questions or help you in any way, we will gladly be available to you.   

We believe that our inherent rights will never be protected until moral rights are part of the U.S. Code and the United States is in compliance with the Berne Convention and the WIPO Copyright Treaty.

Sincerely, on behalf of ASJA’s members, officers and board of directors,

 // Sherry Beck Paprocki, president, president@asja.org

 // Salley Shannon, past president and advocacy chair, advocacy@asja.org

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