Copyright: The ‘Protect the Creative Economy Coalition’

In Feature Articles by Porter Anderson

Ten American organizations intend to counter state-based challenges to federal copyright protections.

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

Pallante: ‘The Problem Is Not Theoretical’
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.

Maria A. Pallante

“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.”

Initial members of the Protect the Creative Economy Coalition are:

  • American Booksellers Association
  • Authors Guild
  • Association of American Publishers
  • National Music Publishers Association
  • News Media Alliance
  • Independent Book Publishers Association
  • Copyright Alliance
  • Motion Picture Association
  • News Media Alliance
  • National Music Publishers Association

If you feel that you’ve heard previously of a coalition of the type this represents, you’re not alone. Publishing Perspectives inquired about whether this effort has been made earlier. In response, we’re glad to have an additional note from AAP’s offices, saying, “A loose coalition came together two years ago to oppose similar anti-copyright initiatives, including the bill that was vetoed in New York because it was at direct odds with the United States Copyright Act and the legislation that was declared unconstitutional in Maryland.

“As a spate of new and extremely troubling bills have been pushed over the past few months, it became clear that a formal coalition was even more urgently needed, and the decision was made to formalize the group under the name of the Protect the Creative Economy Coalition.”

So yes, discerning observers with sharp memories won’t be wrong in sensing that there’s a relatively recent precedent for this effort.

Kupferschmid: ‘Philosophy and Purpose Behind Copyright’

In an effective site developed for the new US coalition’s purposes, it’s clear that the organization sees the threat to creative workers including authors as the most viable channel through which to deliver its messages. And this is easily reflected in the broadening context from which our world readership comes to today’s report from the States.

The Geneva-based World Intellectual Property Organization, in its World Intellectual Property Indicators 2022 report, has a note from WIPO director Daren Tang distilling the survey’s breadth to the fact that, worldwide, patent applications grew in 2021 by 3.6 percent. “Trademark and industrial design filing activity grew by even more—5.5 and 9.2 percent, respectively.

“And worldwide intellectual property filings,” he writes, “reached an all-time high, with 3.4 million patent applications, 13.9 million trademark applications, and applications for 1.5 million designs filed last year.”

Obviously, intellectual property protection is utterly essential, and no one may be clearer on this than a creative worker whose livelihood and creative integrity simply depend on it.

Fleck-Nisbet: ‘Undermining Future Investments’

At the site for the new American coalition, the alarm driving its formation is expressed this way:

“Anti-copyright groups are working in state legislatures across the country to devalue intellectual property through attacks on licensing that are dangerous as well as unconstitutional. They are pushing measures that threaten the viability of competitive markets, the livelihoods of creators, and the future of the entire creative economy.”

Those following the States’ conservative “culture wars” political dynamic will immediately understand the emphasis of the coalition on “state legislatures.”

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.'”

Pallante: ‘Devaluing the Nation’s Creative Output’

Multiple states, the new program points out, “have introduced strikingly similar unconstitutional legislation this year, including Massachusetts, Rhode Island, Connecticut, Hawaii, and Kentucky.” And a useful interactive map of hotspots is included on the site:

Image: Protect the Creative Economy Coalition (on the site this map is interactive)

The brick wall of federal copyright protection appears to be one at which many right-wing activists simply can’t resist hurling themselves.

The leadership of several organizations involved in the coalition’s formation have contributed commentary for the week’s news.

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.”

State legislative challenges likely aren’t all that the coalition will be addressing.

Not surprisingly, intellectual property piracy, for example, comes up in a statement on the site, reading: “The creative economy is a point of pride for US 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 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.”

A programming note: At London Book Fair (April 18 to 20), Publishing Perspectives will moderate a special main-stage examination of “Copyright in a Global Context: Current Threats and Emerging Issues.”

The session is set for 2:30 to 3:15 p.m. on April 18, and will feature:

More from Publishing Perspectives on copyright and its protection is here, more on the World Intellectual Property Organization is here, more on the Association of American Publishers is here, more on the Authors Guild is here, and more on the Independent Book Publishers is here.

About the Author

Porter Anderson

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Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair's International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson was for more than a decade a senior producer and anchor with, CNN International, and CNN USA. As an arts critic (Fellow, National Critics Institute), he was with The Village Voice, the Dallas Times Herald, and the Tampa Tribune, now the Tampa Bay Times. He co-founded The Hot Sheet, a newsletter for authors, which now is owned and operated by Jane Friedman.