Executive Summary and Prepared Testimony
Of David P. Trust,
CEO of Professional Photographers of America
Professional Photographers of America
229 Peachtree Street, Suite 2200
Atlanta, GA 30303
404-522-8600
Executive Summary of
Prepared Testimony of David P. Trust
Professional Photographers of America’s 14,000 members are literally the “copyright owner next door.” Operating in communities both small and large throughout the nation, photographers have faced declining sales of reprints of their work since the mid-90s when photo-quality copying and scanning equipment became widely available. As a result, photographers have changed their business practices, passing their costs on to paying consumers.
The costs of pursuing a copyright claim, together with the law’s registration requirements, put civil enforcement of copyright beyond the reach of almost all photographers. While the possibility of a civil lawsuit is so remote as to be almost laughable, the criminal prosecutions for infringing photographs is so unheard of that they probably never even crosses the willful infringer’s mind.
It has been shown that the existing copyright law is an ineffective deterrent to the widespread, wholesale infringement of copyrighted works. While civil remedies are technically available, the cost of obtaining such remedies is so high as to prevent their use by the vast majority of independent creators. Likewise, the mechanisms for dealing with criminal infringements appear to have been overtaken by time and technology.
The Professional Photographers of America believes that if all the elements of H.R. 2517 are implemented, the bill may provide an adequate deterrent to all but the most determined copyright infringers. For those who willfully refuse to obey the law and continue to steal from others, H.R. 2517 removes unnecessary procedural barriers to prosecution.
Prepared Testimony of David P. Trust
Mr. Chairman, Ranking Member Berman and members of the Subcommittee, I appreciate the opportunity to testify before you on the important issues raised by the “Piracy Deterrence and Education Act of 2003” (H.R. 2517).
As the Chief Executive Officer of Professional Photographers of America, I am honored to be here speaking on behalf of our 14,000 members. PPA is the oldest and largest trade association for professional photographers; our members are engaged in all facets of photography and imaging including wedding, portrait, advertising and commercial specialties. I have also been authorized to speak on behalf of two other photography organizations, the International Association of Professional Event Photographers and the Student Photographic Society.
Photographers are the copyright owners that do not make the headlines every day. They are not glamorous individuals who get large corporate endorsements. No one cares which cola they drink or what brand of shoes they wear. Instead, photographers are the creators who help capture the memories of children and families by telling their story through images. They are the ones who help business owners and the media sell their products and tell their stories. In short, photographers are the creators and the caretakers of America’s visual history.
As such, photographers are an integral part of communities throughout the United States. They are literally, the “copyright owner next door.” Most photographers are small business owners simply trying to earn a living. Some 69% of our members are sole proprietors. They work an average of 45 hours a week and earn less than $35,000 a year. Each year, these small business owners create thousands of copyrighted works and rely on the sale of copies of those works for their livelihood.
And every year, thousands of those works are knowingly and willfully copied for commercial advantage or gain. Since photo-quality color copying equipment and scanners became widely available in the mid-90s, our members have faced declining reprint sales which have led to a reduction in their ability to earn a living and support their families.
As small business owners, photographers have made adjustments to accommodate the reality that their work can be stolen with impunity. This has led to higher prices for paying consumers to make up for the lost revenue. As an example many portrait and wedding photographers have been forced to go to a “minimum order” pricing strategy, knowing that their ability to protect their work once it leaves the studio is nil.
Every day, our members contact us for help with copyright infringement issues. Based on those experiences, PPA and its photographers have come to several conclusions regarding the problems we face as copyright owners.
First, technology is a neutral element. While it makes stealing far easier than ever before, it is not the root of the problem. To borrow a phrase: Technology doesn’t steal intellectual property. People do.
Second, different infringers can be dealt with in different ways. Individuals whose infringements are truly innocent, as well as those involved in genuine disputes regarding the interpretation of licensing agreements, can be dissuaded from committing future infringements by education and direct negotiation. The other category of infringer is the willful and knowing thief. This category includes both individuals and commercial enterprises who know the work is copyrighted, but deem the risks of prosecution or civil liability to be so small as to be immaterial. Unfortunately, their assumption is usually correct.
If an infringer has access to competent legal advice, then they know that the costs of pursuing a copyright claim are beyond the reach of almost all photographers, giving the infringer a de facto license to steal. This is compounded by copyright registration requirements that make it nearly impossible for photographers to obtain statutory damages or attorney’s fees.
While the possibility of a civil lawsuit is so remote as to be almost laughable, the thought of a criminal prosecution is so unheard of that it probably never even crosses the willful infringer’s mind.
So we now find ourselves at a point not entirely dissimilar to what our nation and Congress went through with computer hackers in the 1980s. Originally, computer hackers were viewed as more of annoyance than anything else. However, as time progressed and technology became better understood, the American people and Congress realized the economic harm caused by hackers and passed laws to deter their conduct, and when deterrence failed - to punish their wrongdoing. We firmly believe that the time has come to do the same in regard to intellectual property theft.
We now move to our comments on sections three to six of H.R. 2517 the Piracy Deterrence and Education Act.
Section 3: Deterrence and Coordination
It has been the experience of Professional Photographers of America that education and deterrence are successful in stopping the vast majority casual copyright infringements. Much like any other law, ordinary citizens generally have no qualms about violating copyright law until they are educated regarding the potential penalties. Once this education takes place, it serves as a strong deterrent to future infringements.
Part of ensuring a proper deterrent to intellectual property theft is the ability to uncover illicit copying and distribution when it takes place. In the past a great number of infringement reports we received at PPA came in the form of a photographer being in a local store and seeing a store employee helping a client make the copies. However, as electronic means of distribution and copying become more prevalent, intellectual property theft is becoming ever more difficult for copyright owners to discover and address.
The facilitation of information sharing between the government, Internet service providers and copyright owners is absolutely vital to the enforcement of copyright law. Without this feature, infringements will become almost undetectable, once again rendering copyright enforcement meaningless.
Section 4: Designation and Training of Agents in Computer Hacking and Intellectual Property Units
There is no question in a photographer’s mind that someone who makes unauthorized copies has stolen from them. However, they are often shocked to discover that unlike other business owners, they have little recourse through law enforcement when their property is taken. Obviously, local law enforcement has no jurisdiction over the matter. In those cases where a photographer contacts the Federal Bureau of Investigation, they are almost always turned aside there as well.
Professional Photographers of America favors the attachment of intellectual property investigators to CHIPS units to ensure that claims of potential criminal infringement are given their proper weight. With the vast array of skills already required of federal agents, we believe the addition of a team member well-versed in intellectual property theft would be an invaluable asset. By providing such officers as resources, intellectual property owners can be sure that intellectual property theft-in whatever form it takes-will be handled seriously and pursued when appropriate.
Section 5: Education Program
As mentioned in our comments on section 3, Professional Photographers of America and its members believe strongly in the power of education and deterrence. We believe that the Internet Use Education Program would serve the interests of copyright owners and consumers alike.
Much like the teen shoplifter whose friends convince him or her that shoplifting is a victimless crime that harms no one, portions of the general public have been convinced that stealing is simply sharing when it comes to copyrighted works.
While the efforts of individual copyright owners and trade associations can go a long way toward eliminating this false perception, the Internet Use Education Program would have far greater effect through its superior reach and access to students, corporations and members of the general public.
Section 6: Customs Recordation
It has long been our contention that sections 411 and 412 of the U.S. Copyright Act violate the letter, if not the spirit, of our nation’s obligations under the Berne Convention by placing a “formality” requirement on the civil and criminal enforcement of copyright law. These requirements are particularly onerous when one realizes that foreign authors are exempt from this registration requirement - giving them greater access our court system than our own citizens who own copyrights.
The registration requirement also places an unfair burden on professional photographers. Unlike most other creators who might produce a handful of works that need to be registered each year, a professional wedding photographer can easily create about 800 new works each weekend. A conservative estimate of a professional photographer’s annual creative output is somewhere in the 20,000 plus range. The burden of completing registration forms and sending copies of these images to the U.S. Copyright Office for deposit has created an impossible barrier to the full participation and protection of photographers in the U.S. Copyright system.
In fact, our research has shown that 93% of professional photographers have never registered a single image with the U.S. Copyright Office - and that less than 1% regularly register more than half of their work.
In looking for ways to eliminate this barrier we have worked with the very talented and professional staff at the U.S. Copyright Office. The Copyright Office has been very sympathetic to the logistical impossibility that the current registration regime presents to professional photographers, and has implemented regulations that reduce those burdens. However, there is a limit to what can be accomplished through regulation.
As mentioned previously, PPA contends the requirement that a work be registered in order to bring a civil suit or to obtain statutory damages and attorney’s fee in a civil suit should be eliminated. However, since civil litigation is outside the scope of H.R. 2517 we leave that issue for another day. In the meantime, PPA fully supports the amendment of Title 17, section 411(a) which permits the government to bring a criminal infringement action without the work being officially registered with the U.S. Copyright Office. Likewise, the clarifications of Sections 602(a) and 603(a) will remove unnecessary procedural barriers to enforcement of the law.
Section 7: Infringement Warning Notice
As part of PPA’s commitment to deterrence and education, we believe that granting creators the right to use the FBI seal on their works will go a long way toward placing the seriousness of intellectual property theft in the minds of the American public. An excellent example of this is the FBI warning placed on videos. While we doubt that very many consumers could quote you the content of that warning, recognition of the warning and its implications are almost universal. We have little doubt that consumers are aware that unauthorized reproduction of videotapes is a federal crime.
Our only comment on making the FBI seal available copyright owners is to make certain that the criteria created by the Attorney General may be met by individual creators who are the most vulnerable to infringement and have the greatest need for such deterrence tools.
Conclusion
Over the last several years, our existing laws have proven to be an ineffective deterrent to the widespread, wholesale infringement of copyrighted works. While civil remedies are technically available, the cost of obtaining such remedies is so high as to prevent their use by the vast majority of independent creators. Likewise, the mechanisms for dealing with criminal infringements appear to have been overtaken by time and technology.
The Professional Photographers of America believes that if passed and implemented, H.R. 2517 may provide an adequate deterrent to all but the most determined copyright infringers. For those who willfully refuse to obey the law and continue to steal from others, H.R. 2517 removes unnecessary procedural barriers to prosecution.
Mr. Chairman and Mr. Ranking Member, we thank you for the opportunity to bring the problems of independent copyright owners to your attention and for your efforts in developing legislation that will finally give the owners of intellectual property adequate protection from theft.
Professional Photographers of America strongly urges the Subcommittee to move this legislation forward.
Thank you.