Copyright: The ‘Protect the Creative Economy Coalition’

This content has been archived. It may no longer be accurate or relevant.

From Publishing Perspectives:

In the United States, a coming-together of the Washington-based Association of American Publishers and various copyright-engaged businesses including the Authors Guild—the US market’s leading author-advocacy organization—has created the “Protect the Creative Economy Coalition” as a response to “efforts designed to weaken intellectual property protections and damage digital markets.”

Representing not only major creative industries but also small and independent business owners’ interests, media messaging about the program specifies that its “immediate priority is combating a series of unconstitutional state bills that would artificially depress the value of literary works and the contracts that govern intellectual property licenses.”

Of course, these often inchoate localized efforts “directly conflict with the federal copyright act,” as the AAP indicates, “including the responsibilities of federal lawmakers to determine the nation’s intellectual property laws.”  

And an in an age of performative office-holders, many of whom have no experience or interest in genuine governance, it’s easy to overlook the potential gravity of such wild-eyed forays. However, “The problem is not theoretical,” says AAP president and CEO Maria A. Pallante in her comment on the establishment of the Protect the Creative Economy Coalition.

“The state bills would subject authors and publishing houses of all sizes to serious liabilities and financial penalties for exercising the very rights that the United States Copyright Act so clearly affords them—the definition of a constitutional conflict.  

“Moreover, they would forge a concerning precedent for downstream appropriation of intellectual property investments by actors well beyond the states, especially as to already precarious digital copies.

“We stand by our time-tested copyright system, and we are deeply dubious of assertions that devaluing the nation’s creative output is in the public interest.”

. . . .

Our international readership at Publishing Perspectives might recall one specific struggle of this kind for publishers when the state of Maryland tried to put into place a law requiring publishers to offer its state libraries “reasonable terms” established by the state itself, a direct contradiction to the federal priority of the United States Copyright Act. By June of last year, the state’s federal district court had issued the equivalent of a legal smackdown of Maryland’s scheme, followed swiftly by the governor of New York’s veto of a very similar bill being tested in that state’s capital.

In its media messaging provided to Publishing Perspectives on Wednesday (March 15), the coalition refers to the dogged, almost incoherent energy with which such right-wing efforts are repeated in various jurisdictions–an energy not unlike that which underlies the jagged anger of book bans and the more than 60 completely unsuccessful efforts made in courts nationwide to overturn the results of the 2020 presidential elections.

“Inexplicably,” the AAP writes for the coalition, “proponents continue to push their bills after a similar effort in Maryland was declared unconstitutional by a federal court in 2022. Bills in both New York and Virginia were also rejected, although not without ongoing, illogical, and reckless claims by the proponents. In an especially ludicrous example in Connecticut, a proponent equated the nation’s literary works with ‘floor wax and road salt.’”

. . . .

Mary Rasenberger, CEO of the Authors Guild: “These bills are unconstitutional and for good reason. They target the federal copyright system that authors depend on to earning a living.

“And they’re doing this at a time when the writing profession is already facing existential threats. Writers’ incomes have become precariously low, forcing talented writers to leave the profession; as a culture, we lose their books and their important insights. By forcing pricing limits and other restrictions on not just publishers but thousands of self-published authors, the bills exhibit total disregard of the reality that authors in the commercial marketplace have to earn enough money to stay in the profession.

“The Authors Guild is fully committed to libraries having access to all books and in all formats to meet their communities’ needs. We regularly lobby for increases in library funding. It is unfair to put the cost of libraries’ needs on authors.”

Andrea Fleck-Nesbit, CEO of the Independent Book Publishers Association: “For independent publishers and self-published authors, these [state] bills are especially harmful.

“The legislation would undermine the intellectual property of authors and publishers by manipulating fair market compensation for their creative work. It also places an outsized and unsustainable financial burden on small business owners.

“The bills would lead to a patchwork of differing rules across the country creating mass confusion, disrupting access, and undermining future investments. This is the reason why copyright is under the purview of federal law in the first place.” 

Keith Kupferschmid, CEO of the Copyright Alliance: “Several states are considering misguided ebook bills that would require publishers to license their works to libraries on terms determined by the states.

“Such legislation would strip authors and publishers of their exclusive right under the copyright act to decide whether, when, and to whom to distribute their copyrighted works.

“It has already been well established in several states that not only are the ebook bills unconstitutional, they also are contradictory to the economic philosophy and purpose behind copyright, which encourages the advancement of authors, artists, photographers, and all creators by providing them with an incentive to create new works for the public to enjoy and to control how they are distributed and monetized.”

Link to the rest at Publishing Perspectives

PG has no doubt that traditional publishers overcharge public libraries for ebook lending rights, but this not something state legislatures can do anything about. While a number of states have their own copyright laws, those laws only protect against copying in that state and are generally ignored by most IP lawyers.

Additionally, the book business (and especially the ebook business) falls into the sphere of interstate commerce which is exclusively reserved for federal legislation. When you drive your automobile from California to New York, you don’t need to buy a new license plate for every state you pass through.

Meaningful copyright laws are exclusively on the federal level and, from that platform, are reciprocated in a number of other nations via a number of international copyright treaties. A Google search for “The Berne Convention” will give you all the information you are likely to care about concerning international copyright treaties.

11 thoughts on “Copyright: The ‘Protect the Creative Economy Coalition’”

  1. I would add a modifier to that–the people running the library journals are literary lemmings, who want to see themselves as being “sophisticated.” Indy books are gauche because they haven’t been properly vetted, while normalizing weird sexual nonsense seems to be the “in” thing among the cultural tastemakers.

  2. So I am having difficulty identifying the problem out of the word salad.

    So reasonable terms is not charging $100 for an ebook to a public library while charging $15 for an individual sale?

    But as far as I know that is just tradpub? Is the ” thousands of self-published authors” even affected, last time I checked admittedly a few years ago my library did not have a single ebook from a self published author.

    • Libraries don’t want Indies.
      When offered the chance to get them they demanded they be listed separately so they wouldn’t otder one by accident.
      Indie books got cooties.

      • It’s more like they’re captives of their ordering system partners. It’s like offering vending machines in the lobby — if your candy stocker doesn’t deal in peanuts, then no nuts for you regardless of how many quarters you have.

        Libraries are wholly incapable of setting up their own ordering systems for indies and bypassing the tit they’re used to. There are, however, some grassroots orgs (e.g., Bibliolab) that are getting some meaningful quantities of (digital) indie books into individual libraries, and the targets are growing.

        • Not quite.
          Overdrive has offered Indie titles from Smashwords for years. More recently they’ve added other distributors. So it’s not that libraries aren’t offered indie titles.

          When overdrive started offering Smashwords Indie titles in 2014 the libfaries screamed bloody murder and demanded they be listed separately.

          Since then when asked, they are careful to say that yes, they offer “self published and small press” books. By which they really mean small press and agent assisted books, like Bujold’s PENRIC ebooks. Actual author/publisher works? Only a few libraries, probably by mistake.

          BTW, after the news broke out in 2014 Overdrive explained the segregation of idines was not their idea but rather the librarians’. Who defended themselves by blaming the library journals because they only bought books recommended by them.

          (Which is where the current catfights over explicit books in childrens’ section has its roots. Librarians seem to be lemmings when it comes to choosing what they stock. Rather like pre-Daunt B&N.)

  3. In its media messaging provided to Publishing Perspectives on Wednesday (March 15), the coalition refers to the dogged, almost incoherent energy with which such right-wing efforts are repeated in various jurisdictions…

    Maryland Legislature and Senate – completely dominated by Democrats.

    New York Legislature and Senate – completely dominated by Democrats. (Governor Hochul only vetoed that bill because she knew it was a lost cause that would have strained an already unhealthy State budget.)

    Perfect example of “I don’t like this, so it is obviously a plot of those far-right MAGA insurrectionists!” (Or, “I don’t like this, so it is obviously a plot of those far-left commie-loving Bernie Sanders nutcases!”)

    The national identity is not fracturing along “left,” “right,” and “center” lines – it is devolving into a myriad pieces based on whose ox is being gored, or whose pockets are being lined.

    (Note that those “far-right” library and librarian associations that are pushing these terrible laws are the very same groups that are vehemently opposing the “banning” of explicitly sexual and race-baiting books.)

    (Edit for additional note – while a Republican Governor did sign the Maryland legislation, Larry Hogan is certainly not considered to be “far-right.” Arguably, he’s not even “right-wing,” being rather to the left of what I grew up identifying as “centrists.”)

    • I was also wondering what the connection between attacks on copyright and the right-wing are. Anybody know? Last I heard, the laws were being pushed by librarians. Are they now a hotbed of right-wingers?

      Personally, I think these bills are caused by climate change.

      • “Right Wing” is a magical invocation akin to, say, S.H.A.Z.AM.!

        Just by saying those words you are automatically the good guys…
        …in the eyes of the corporate media. This allows them to control the messaging which is all they care about. Both sides.

        Because both sides are way behind the curve and totally oblivious to what is headed their way. (And ours. 🙁 )

        Their industry is so used to ignoring inflation in their public reporting they have no idea what switching from (effectively) zero percent inflation for 15 years to an enduring regime of 7-10% or more for a decade-plus means for their cost structure and their markets.

        Hint: taking a middle range estimate of 7% annually over 10 years means a doubling of costs. That $15 trade paperback will jump to $30. That is not going to impact tradpub or libraries in any way, right? Right…

        So they’re going to fight their 2020 catfight all the way to 2035…

  4. There’s a real irony in the libraries involved being state/state-sponsored entities:

    If they were private institutions, they’d be able to use the antiboycott and nondiscrimination provisions of the Clayton Antitrust Act. You’re allowed to provide a “membership benefit,” but not a “nonmembership burden” — that is, you hypothetically could set the list price at $75 for an e-book and allow customers who are “verified individual consumers” an 80% discount, but you can’t set the list price at $15 and jack it up for “lending businesses” to $75. But states (and their subdivisions) are explicitly excluded from those provisions. When it was originally passed, there were fears about these provisions being misused by state, county, and municipal infrastructure departments (roads, sewers, transit, etc.) to force small-business contractors to undercut themselves without regard to distance, licensing, inconvenience, etc. Nobody thought about libraries!

    The better approach for libraries would be to attack through the UCC’s provisions regarding misuse of license terms to restrict the ordinary usage of items of commerce, but that’s a hypertechnical battle that would have to be fought state by state. And it would still be intertwined sufficiently with “interstate commerce” to snarl it even further.

    • By the time the matter gets settled, one way or tbe other, nobody will care.

      Trailing edge catfights end up meaningless.

Comments are closed.