Broad Coalition Focused on Fighting Attacks on Intellectual Property Rights and the Creative Economy
March 15, 2023 — Authors, publishers, and copyright businesses from across the United States have come together to launch the Protect the Creative Economy Coalition in response to efforts designed to weaken intellectual property protections and damage digital markets. The Coalition represents small and independent business owners as well as major creative industries.
Combatting Unconstitutional Legislation
The Coalition’s immediate priority is combatting a series of unconstitutional state bills that would artificially depress the value of literary works and the contracts that govern intellectual property licenses. Putting aside the chaos of enforcing state-specific rules within a far-reaching, global IP framework, the bills directly conflict with the federal Copyright Act, including the responsibilities of federal lawmakers to determine the Nation’s IP laws.
Inexplicably, 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.”
“These bills are unconstitutional and for good reason. They target the federal copyright system that authors depend on to earning a living,” said Mary Rasenberger, CEO of the Authors Guild. “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.”
“The problem is not theoretical,” commented Maria Pallante, President and CEO of the Association of American Publishers. “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 Copyright Act so clearly affords them—the definition of a constitutional conflict. Moreover, they would forge a concerning precedent for downstream appropriation of IP 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.”
Multiple states have introduced strikingly similar unconstitutional legislation this year, including Massachusetts, Rhode Island, Connecticut, Hawaii, and Kentucky. Similar bills were previously rejected in New York and Virginia, and declared unconstitutional by a federal court in Maryland.
The initial members of the Protect the Creative Economy Coalition include the American Booksellers Association, the Authors Guild, the Association of American Publishers, the National Music Publishers Association, News Media Alliance, and Independent Book Publishers Association as well as the Copyright Alliance, which represents the interests of more than two million authors, photographers, performers, artists, software developers, musicians, journalists, directors, songwriters, game designers, among others, and more than 15,000 related organizations.
Intellectual Property is a Priority for the U.S.
Intellectual property has been a high priority for the United States for more than two centuries, since the Founders first authorized the U.S. Congress to grant to authors the marketable legal rights that are the basis of the modern creative economy. Since those early days, both Congress and the courts have consistently reaffirmed the economic incentives that are at the heart of both the Copyright Act and the Digital Millennium Copyright Act, which together govern public access to digital copies.
The creative economy is a point of pride for U.S. commerce, but it is especially vulnerable to piracy in the digital age, making it critical that authors and their business partners have both financial confidence and legal control over key strategic decisions relating to formats, timing, terms, technology, and other downstream details. Today, thanks to federal protections and related international cooperation, members of the public may access, download, or stream a wealth of creative works from the comfort of their own homes under a variety of intellectual property licenses. Nevertheless, the Protect the Creative Economy Coalition does not take this result for granted and it will not permit irresponsible activists to put creative livelihoods at risk.
Coalition Members Speak Out
“For independent publishers and self-published authors, these 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,” said Andrea Fleck-Nisbet, CEO of the Independent Book Publishers Association. “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.”
“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 are also 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,” said Keith Kupferschmid, CEO, Copyright Alliance.
Legislation Ignores the Fact That e-Lending is Robust
Thanks to the considerable support and innovation of American authors, publishing houses, and their technology partners—and strong copyright protections—public libraries today are offering unprecedented access opportunities to their patrons. Indeed, public libraries are competitive participants in local copyright economies: they license a plethora of bestselling, award winning, popular, and esoteric works for their communities, in competition with booksellers. But unlike booksellers, they have the benefit of special terms and conditions that permit them to publicly redistribute (or “e-lend”) fiction, nonfiction, children’s works, magazine articles, comics, newspapers, and other valuable intellectual property over and over again, subject to important legal and technical controls that protect otherwise precarious digital formats from becoming untethered from their copyright owners.
With respect to eBook formats, the fact is that library e-lending has exploded to the point that commercial revenue continues to decline as library “check-outs” increase. Indeed, while print books remain overwhelmingly more popular—and essential to many patron groups and community literacy objectives—access to digital formats has exploded, an impressive result in the face of limited library budgets. Incredibly, in 2022, library patrons “borrowed” more than half a billion literary works from the comfort of their own homes, in both eBook and audiobook formats—ten percent more than the record-breaking numbers of 2021.
Given the undeniably robust state of library e-lending practices in the United States, and the counterbalancing concerns about booksellers and other consumer copyright markets, it is difficult to fathom why a state government would seek to undermine both the value and viability of American intellectual property.
Learn more about the fight to protect the creative economy and protecting copyright as the foundation for creative livelihoods. You can learn more and join at https://protectthecreativeeconomy.org