Maria Pallante took over as President and CEO of the American Publishers Association in January 2017. In selecting Pallante, a former US copyright registry, AAP noted her strong background in intellectual property law and policy. Copyright protection has long been one of the AAP’s main priorities, and it’s a job for the organization at a time when copyright issues have become more contentious. As a result, in June 2020, AAP coordinated a copyright infringement lawsuit brought by four publishers against the Internet Archive; in July, the parties filed motions for summary judgment, and responses to those motions were briefed last week. More applications are due in October. PW Interview with Pallante to discuss AAP’s response to ongoing copyright challenges and other association initiatives.
AAP has made copyright protection a top priority for some time. Can you tell me how this decision was reached?
Copyright has been our number one priority for over fifty years, as it is the legal foundation of the publishing industry, but you’re right, we’ve been incredibly busy lately. That’s because the Internet Archive and its affiliated library futures have launched a series of torpedoes against copyright law, efforts that would irreversibly diminish authors’ ability to license their works, if not create them in the first place. Our board has prioritized these threats and taken them seriously, as should anyone who cares about the future of books.
When e-books first appeared, many publishers worried that their “frictionless” ease of use through libraries would lead to a decline in print and e-book sales. That claim has faded, but it appears to be a problem again, with publishers citing it as a reason ebook sales haven’t grown. Is this what we’re talking about?
That’s a fair observation, as ebook sales are definitely declining, and e-lending is definitely exploding. Logically, the more seamless it becomes to download digital copies for free without waiting, the more publishers will worry about the balance between their respective markets. They are accountable to their authors and their own sustainability.
In a recent eBook study, the Federation of European Publishers demonstrated a correlation between frictionless lending and consumer recession, and I don’t think anyone was surprised by this conclusion. But for the copyright business, friction is an established calculation that extends far beyond libraries. That’s why we experience a constantly changing menu of streaming, subscription and download services for music, movies and video games, as well as constant adjustments to pricing, release dates and wait times. From the outside, these terms can be confusing and even frustrating, but they are designed to promote creative work in a competitive environment.
I do think publishers strive to provide ebooks to consumers as well as ebooks to libraries, because librarians are respected partners in the success of books. As OverDrive reports, libraries achieved an all-time record for digital lending in 2021, while reducing the average cost of borrowing per book. In fact, most licenses allow libraries to transfer e-books to patrons dozens of times, all in all for a fraction of what consumers pay for limited access per use, meaning no further distribution.
One thing I can say with confidence is that technology continues to evolve, so authors, publishers, libraries, and booksellers will continue to negotiate their respective agreements and budgets. They don’t work very well if the copyright market is stagnant, which is why we no longer have eight-track cartridges in our cars.
What are your thoughts on Controlled Digital Lending or CDL?
A CDL is a baseless justification for infringement, contrary to copyright law and common sense. It was dragged together by a small group of individuals with close ties to the Internet Archive, so it was always linked to the defendant’s actions. The law clearly states that formats are distinguishable, which means that no one – be it private, public libraries or pirates – can distribute digital pirated copies of physical copies, whether they are ripped hardcovers, vinyl records or compact discs. It does not matter whether the defendants claim to manage virtual bookshelves or maintain physical copies, as the cases in the fields of music and film show. The court condemned the format switch because it went beyond the first-sale doctrine and forced authors to subsidize activities they didn’t license and couldn’t include.
As a former policy maker, I would say that in some important cases, libraries and museums should be able to reproduce works in or for their collections – for example, to acquire, preserve or lend at-risk material . But such an activity doesn’t need a new theory and name: it’s already subject to fair use and/or the library exception detailed in copyright law. Neither Congress nor the courts have ever sanctioned something like CDL because it strips authors of their intellectual property interests while allowing aggressors to take their place.
With the proliferation of banned books, what is the AAP doing to protect free speech and free speech?
It’s distressing to see authors, librarians and teachers so capriciously targeted, especially when the few seem to be making decisions for the many. In the past few months, we have been involved in two legal challenges, one in Missouri in April and one in Virginia in July, both involving violations of Supreme Court precedent. The Missouri case is currently on appeal, but the dismissal of Virginia’s obscenity charges on the eve of Labor Day is a resounding affirmation that both writing and reading are constitutionally protected.
On a related note, our education companies are working hard to maintain the historical, ethnic, and gender-based accuracy and integrity of instructional materials, and we are doing what we can to help. I do worry about authors caught in the crosshairs, including those who write about LGBTQ+ issues—their books are so important that they must remain discovered no matter what.
What is the status of your diversity/equity/inclusion and climate and sustainability efforts?
We’ve added climate and sustainability issues to our global policy priorities, and we’re about to announce our first DEI Program Vice President.
So much to do, so little time!
A version of this article appeared in the September 12, 2022 issue Publishers Weekly Under the heading: Copyright Champions