CAA News

The deadline for authors and publishers to opt out of a recent class-action settlement regarding the scanning and electronic distributing of in-copyright books by Google is May 5, 2009.

Last October, the Authors Guild, the Association of American Publishers, and Google announced a settlement agreement on behalf of a broad class of authors and publishers worldwide that would expand online access to millions of in-copyright books and other written materials in the United States from the collections of a number of major US libraries participating in Google Book Search.

For full details on the settlement and to opt out, please visit www.googlebooksettlement.

On Tuesday, March 23, the US Court of Appeals for the Second Circuit will reconsider the case of a Swiss professor and Muslim scholar, Tariq Ramadan, who was banned from entering the country in 2004, reports John Schwartz of the New York Times. Based on a provision for ideological exclusion in the USA Patriot Act, Ramadan was declined a visa by the US government to travel to America and take a position at the University of Notre Dame.

The American Academy of Religion, the American Association of University Professors, and PEN American Center all support the American Civil Liberties Union, which is challenging a 2007 ruling that upheld the government’s decision. Arguing for Americans’ First Amendment rights to hear Ramadan, this coalition is also calling on the new presidential administration to end ideological exclusion.

The Patriot Act allows the US to deny a visa to anyone whom it believes has endorsed or espoused terrorist activity or persuaded others to endorse or espouse terrorist activity. The ACLU, however, claims the government used the provision more broadly to deny entry to scholars, writers, and activists whose political views it disfavored. After the ACLU initially filed suit, Schwartz reports, the government asserted that Ramadan made contributions from 1998 to 2002 to a charity in Switzerland, called the Association de Secours Palestinien, which the Treasury Department had deemed a Hamas-affiliated terrorist organization.

Representative Peter King, a Republican from the State of New York, reintroduced the Free Speech Protection Act (HR 1304) to protect the First Amendment rights of Americans who are sued for defamation in foreign courts. With the rise of libel tourism, the fear of a lawsuit has become a deterrent for American authors, journalists, and publishers seeking to publish works on topics such as terrorism. The bill provides protections that will deter foreigners from suing Americans.

Recently there has been a rise in “libel tourism,” where foreigners take advantage of plaintiff-friendly foreign court systems, such as in the United Kingdom, in order to sue Americans for defamation. When sued in foreign courts, it has been difficult for Americans to countersue, as they could not establish standing in US courts. Without the ability to retaliate, there is nothing to discourage the practice of libel tourism.

The Free Speech Protection Act does the following to protect Americans and deter foreign libel lawsuits:

• Allows US persons to bring a federal cause of action against any person bringing a foreign libel suit if the writing does not constitute defamation under US law
• Bars enforcement of foreign libel judgments and provides other appropriate injunctive relief by US courts if a cause of action is established
• Awards damages to the US person who brought the action in the amount of the foreign judgment, the costs related to the foreign lawsuit, and the harm caused due to the decreased opportunities to publish, conduct research, or generate funding
• Awards treble damages if the person bringing the foreign lawsuit intentionally engaged in a scheme to suppress First Amendment rights
• Allows for expedited discovery if the court determines that the speech at issue in the foreign defamation action is protected by the First Amendment.

While the goal of the bill is to protect Americans from the exploitation of libel tourism, it does not intend to limit legitimate cases of defamation. Nothing in the bill limits the rights of foreign litigants who bring forward good-faith defamation actions against journalists and others who have purposely and maliciously published false information.

In 2008, New York State passed a similar bill entitled Rachel’s Law. King’s bill raises the issue on the federal level so that all American’s rights can be protected. Senators Specter, Lieberman, and Schumer have introduced companion legislation in the Senate.

The Associated Press (AP) is claiming copyright in the image used by the street artist Shepard Fairey for his famous poster of Barack Obama. Fairey acknowledges that his image is based on a 2006 photograph taken by Manny Garcia while on an AP assignment at the National Press Club in Washington. “The AP says it owns the copyright, and wants credit and compensation,” writes Hillel Italie, a reporter for the news organization. Anthony Falzone, who is Fairey’s attorney, the executive director of the Fair Use Project at Stanford University, and a lecturer at the Stanford Law School, is arguing for fair use.

An exhibition of Fairey’s work opens tomorrow at the Institute of Contemporary Art in Boston, Massachusetts, on view through August 16, 2009.

In related copyright news, a lawsuit was filed in late December against the artist Richard Prince and Gagosian Gallery by the French photographer Patrick Cariou. Prince appropriated photographs from Cariou’s book Yes Rasta from 2000 in his recent exhibition of work; the work was also reproduced in a catalogue published by the gallery. Daniel Grant has the story for the Wall Street Journal.

The National Endowment for the Humanities has announced that Chairman Bruce Cole will leave the endowment to join the American Revolution Center as its president and chief executive officer, effective January 2009.

Appointed NEH chairman by President George W. Bush, Cole was confirmed by the Senate in 2001 and reconfirmed in 2005 for a second term. Cole is the longest serving chairman in NEH history. During his tenure, the NEH launched innovative humanities programs, including We the People and Picturing America. Under his leadership, the NEH led the application of digital technology to the humanities through its Office of Digital Humanities. The office established innovative new grant programs and formed ground-breaking partnerships with the Department of Energy and the National Science Foundation. Cole has also worked to broaden the international reach of NEH.

The Authors Guild, the Association of American Publishers, and Google today announced a groundbreaking settlement agreement on behalf of a broad class of authors and publishers worldwide that would expand online access to millions of in-copyright books and other written materials in the United States from the collections of a number of major US libraries participating in Google Book Search. The agreement, reached after two years of negotiations, would resolve a class-action lawsuit brought by book authors and the Authors Guild, as well as a separate lawsuit filed by five large publishers as representatives of AAP’s membership. The class action is subject to approval by the US District Court for the Southern District of New York.

The agreement promises to benefit readers and researchers, and enhance the ability of authors and publishers to distribute their content in digital form, by significantly expanding online access to works through Google Book Search, an ambitious effort to make millions of books searchable via the web. The agreement acknowledges the rights and interests of copyright owners, provides an efficient means for them to control how their intellectual property is accessed online, and enables them to receive compensation for online access to their works.

To read more about this landmark settlement, visit the Authors Guild v. Google Settlement Resources Page and the Google Book Search Copyright Settlement. The Chronicle of Higher Education, Inside Higher Ed, the New York Times, and Wired all report on the story.

After a flurry of Congressional activity last week and the passing of the Shawn Bentley Orphan Works Act in the Senate, Gigi Sohn of Public Knowledge (PK) notes, orphan-works legislation has died in the House of Representatives. She writes:

The negotiations went on for hours and hours on [October 2–3], but in the end, PK, working with the user community (libraries, documentary filmmakers, educational institutions and the College Art Association) could not agree with on language with the House staff…. Time had run out.

Though several matters remained unresolved, which Sohn discusses, she was proud of the progress made so far and is pleased that the issues surrounding the documentation of a good-faith search have been narrowed so that future legislative efforts may be more fruitful.

For several years, Congress has been considering legislation to address issues raised by orphan works. Orphan works are works that are still in copyright, but where the copyright holder cannot be found and the rights cleared. Most recently, in September 2008, the Senate passed S.2913, the Shawn Bentley Orphan Works Act of 2008. CAA has been supporting this legislation, as a boon for both CAA’s artist and scholar members.

CAA is the nation’s largest organization representing the visual-arts communities. With its wide-ranging membership, including artists, scholars, museums, and other visual-arts professionals, CAA has been involved in discussions on orphan-work legislation from the beginning. With the assistance of anecdotes from scores of its members CAA filed substantial comments with the US Copyright Office in March 2005, identifying circumstances in which current copyright law impairs the use of orphan works in artistic and scholarly works alike and proposing a legislative approach that would balance the legitimate interest of creators, copyright owners, and users. CAA also participated in roundtable discussions held by the Copyright Office. In January 2006, the Copyright Office issued a report that cited the CAA’s comments and recommended adoption of orphan-works legislation, including conditions that would appropriately balance the interests of contemporary artists and other copyright owners with the interests of users of orphan works.

From the time that such legislation was first introduced, in May 2006, to implement the recommendations of the Copyright Office and, throughout the 110th Congress, CAA has been working with other organizations—including museums, universities, libraries, and commercial publishers, as well as the Copyright Office—in crafting orphan-works legislation. The purpose of the legislation is to amend the copyright law to allow orphan works to be used without an undue risk to the user—of statutory damages or an injunction—assuming that the user conducted a diligent search for the copyright owner and properly attributed the work as an orphan work. At the same time, CAA, with its membership of artists, designers, and photographers, has taken full account of their concerns that orphan-works legislation, if enacted, would allow bad-actor copyright infringers to avoid copyright liability. In particular, CAA is aware of fears that artists whose works cannot easily be signed, or have other identifying information attached to them, might readily become orphaned and, in this way, be used unfairly and unscrupulously, without appropriate compensation and attribution.

CAA supports legislation that would require users of orphan works to conduct diligent searches to identify and locate copyright owners as a precondition of works becoming eligible for orphan-works treatment. The search requirements that CAA supports are detailed and meaningful, but they also are not unduly burdensome. They include searches of Copyright Office records and the use of other appropriate databases and other resources. The requirement that the user conduct a diligent search, with the parameters of such a search elaborated in the legislation itself, is intended to ensure that copyright owners would not be at risk from bad-faith searches. CAA also has been working hard to ensure that, should there ever be litigation surrounding the use of an orphan work, the burden would be on the user to demonstrate that his or her search was diligent. In addition, CAA supports legislation that would permit courts to pay heed to best practices for searches that would be crafted by professional organizations, such as CAA. If the legislation is enacted, then CAA will be uniquely well-suited to develop and promulgate guidelines on best practices for searches, given the wide range of interests of its members and the wide spectrum of copyrighted works that they create and use.

Finally, CAA encourages artists to consider the advantages of registering their works with the US Copyright Office. Under the legislation supported by CAA, in coalition with other visual-arts organizations, ordinarily, for a search of an orphan-work copyright owner to qualify as diligent, the user generally should search the Copyright Office’s registration records, as reasonable under the circumstances. By registering their works, CAA’s members will be better able to protect their creative property while allowing for appropriate and lawful use under the copyright law.

Daniel Barlow reports in the Rutland Herald that the US Senate passed the Shawn Bentley Orphan Works Act (S.2913); the vote took place September 26, 2008. An “orphan work” is any copyrighted work—book or other text, picture, music, recording, film, etc.—whose copyright owner cannot be identified or located. According to the bill’s author, Senator Patrick Leahy (D-VT), orphan-works legislation in the House of Representative (H.R.5889) will most likely not be voted on until after the presidential election in November.

CAA is working hard to ensure that a final bill will include language that gives professional groups—including such associations as CAA, professional photographers organizations, and others—the ability to define appropriate guidelines for what constitutes a sufficient search for a copyright holder. This in turn will allow organizations like CAA to ensure that artists’ copyrights are protected.

Marybeth Peters, the register of copyrights at the US Copyright Office, released a statement on the eve of the vote explaining the need for orphan-works legislation. For several years, CAA has been actively involved orphan works. For other copyright issues, see the Intellectual Property and the Arts section of the CAA website.

On September 25, 2008, the United States Senate voted to ratify the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. This international convention regulates the conduct of nations during war and military occupation in order to assure the protection of cultural sites, monuments, and repositories, including museums, libraries, and archives. Written in the wake of the widespread cultural devastation perpetrated by Nazi Germany during the Second World War, and modeled on instructions given by General Dwight Eisenhower to aid in the preservation of Europe’s cultural legacy, the Hague Convention is the oldest international agreement to address exclusively cultural-heritage preservation. The US now joins 121 other nations in becoming a party to this historic treaty. By taking this significant step, the US demonstrates its commitment to the preservation of the world’s cultural, artistic, religious, and historic legacy.

Although the US signed the convention soon after its writing, the Pentagon objected to ratification because of increasing cold-war tensions. Only with the collapse of the Soviet Union did the US military withdraw its objections, and President Bill Clinton transmitted the convention to the Senate in 1999. The public attention given to the looting of the Iraq Museum in Baghdad in 2003 and the looting of archaeological sites in southern Iraq during the ensuing years revived interest in the convention, and the Senate finally voted to give its advice and consent to ratification last week.

A number of understandings were established in connection with the ratification, mostly to ensure that the convention does not interfere substantially with the US military’s ability to wage war. The final element of the ratification is a “declaration,” which states that the treaty, though self-executing: (a) does not require the US government to prosecute anyone who violates the convention (implicitly meaning that such prosecution is required only if a US law is also violated); and (b) does not give individual persons a right of redress in US courts.

Peter Tompa at the Cultural Property Observer provides a summary and commentary on what happened in the Senate. CAA has posted PDFs of both the introduction of the Hague Convention to the Senate by the Senate Foreign Relations Committee and the ratification of the treaty, from the Congressional Record.

Statements by Hague Convention Advocates
While US policy has been to follow the principles of the convention, ratification will raise the imperative of protecting cultural heritage during conflict, including the incorporation of heritage preservation into military planning; ratification will also clarify the United States’ obligations and encourage the training of military personnel in cultural-heritage preservation and the recruitment of cultural-heritage professionals into the military. Cori Wegener, president of the US Committee of the Blue Shield (USCBS), noted that “Ratification of the Hague Convention provides a renewed opportunity to highlight cultural-property training for US military personnel at all levels, and to call attention to cultural-property considerations in the early stages of military planning. The US Committee of the Blue Shield will continue its commitment to offering cultural-property training and coordination with the US military and to increase public awareness about the 1954 Hague Convention and its international symbol, the Blue Shield.”

Patty Gerstenblith, president of the Lawyers’ Committee for Cultural Heritage Preservation (LCCHP), cited among the advantages of ratification, “Most importantly, it sends a clear signal to other nations that the United States respects their cultural heritage and will facilitate US cooperation with its allies and coalition partners in achieving more effective preservation efforts in areas of armed conflict.”

The Archaeological Institute of America (AIA) has advocated ratification of the Hague Convention for more than fifteen years. John Russell, AIA vice president for professional responsibilities, commented that “By ratifying the 1954 Hague Convention, the US has affirmed its commitment to protecting cultural property during armed conflict. The Archaeological Institute of America will continue to work with the Department of Defense to integrate the Convention’s provisions fully and consistently into the US military training curriculum at all levels.”

Since the founding of the Lawyers’ Committee for Cultural Heritage Preservation in 2004 and of the US Committee of the Blue Shield in 2006, ratification has been among their primary priorities. AIA, LCCHP, and USCBS formed a coalition of preservation organizations that submitted testimony to the Senate Foreign Relations Committee in support of ratification and worked with members of the Senate to achieve this historic step. The Statement in Support of US Ratification of the 1954 Hague Convention urging Senate ratification, joined by twelve other cultural preservation organizations, is available from LCCHP.

LCCHP acknowledges the additional assistance of the Society for American Archaeology and the Oriental Institute of the University of Chicago in the effort to achieve ratification of the Hague Convention.

CAA Standards and Guidelines
CAA has advocated for the ratification of the convention for decades. CAA has also published its own Standards and Guidelines on issues related to international cultural heritage: the CAA Statement on the Importance of Documenting the Historical Context of Objects and Sites (2004), A Code of Ethics for Art Historians and Guidelines for the Professional Practice of Art History (1995), part of which addresses trafficking in works of art; and the Resolution Concerning the Acquisition of Cultural Properties Originating in Foreign Countries (1973).