Author Archives: Rachel Brooke

The Consolidation of Publishing Houses, Past and Present

Posted December 8, 2021

Last month, after the Department of Justice filed an antitrust lawsuit to stop the merger of Penguin Random House and Simon & Schuster, we wrote about the intersection of antitrust law and publishing. The antitrust lawsuit is responding in part to a longtime pattern in publishing—the consolidation of publishers over time. In today’s post, we will discuss these consolidations, explaining how they can affect authors and contextualizing them historically.

Publishing Mergers and Acquisitions Today

Just last week, it was announced that a newly formed investor group had acquired Open Road Integrated Media—one of the largest standalone e-book publishers founded by former HarperCollins CEO, Jane Friedman. And Open Road itself purchased a UK-based publisher, Bloodhound books, just a few months back. This pattern is nothing new, but it shows how rapidly publishers can merge and change hands. It is not clear what will happen to Open Road’s operations in the wake of the sale, but the unpredictability of these transactions can work to authors’ detriments in a number of ways.

When publishers merge or acquire other publishers, a key question is what degree of independence each entity will have within the new one. For example, in the recent proposed Penguin Random House/Simon & Schuster merger, concerns emerged almost immediately about whether the various imprints under the Penguin Random House banner, which will include Simon & Schuster’s imprints if the merger goes forward, will be allowed to bid against one another for book deals. If not, the fewer competitors in the space to drive up bids for books might mean that authors receive lower advances. Publishers do allow intra-house competition in some cases: following the 2013 merger of Penguin and Random House, the new firm opted to allow its imprints to compete against each other, provided there was a publisher other than Penguin Random House involved as well.

Historical Patterns in Publishing Mergers and Acquisitions

While the proposed Penguin Random House and Simon & Schuster merger has generated significant controversy, mergers between trade publishers and publishing conglomerates have in fact been quite common over the past 50 years. According to a study published in Publishing Research Quarterly last year, purchasers tended to be corporate conglomerates in the 1960s and 70s, diversified media companies in the 1980s, financial buyers in the 1990s and 2000s, and other book publishers in today’s market.

Moreover, alarm over accelerating mergers within publishing is also nothing new. In fact, a 1977 New York Times article discussed the contemporaneous “merger fever” within publishing and even mentioned an antitrust investigation by the Department of Justice. Acquisitions like Bertelsmann’s purchase of a majority share of Bantam Books drew attention at the time, but these moves were just the beginning: Bertelsmann came to fully own Bantam in 1988, then merging it with Doubleday (a large conglomerate in its own right in the 1970s) before separately acquiring Random House in 1998 and reconfiguring Bantam and Doubleday as imprints within Random House.

Tracing these mergers can be dizzying, and moreover it can make it more difficult for authors to obtain reversions of rights when their works are no longer in print (rights reversion refers to the process of formally reclaiming rights that were formerly handed over to a publisher under a clause in the publication contract). For example, an author who published a book with Dutton Books in the early 1970s who wanted to contact her publisher in order to exercise her contractual right of reversion would have to trace the ownership of the publisher from to Dutch publisher, Elsevier, which bought Dutton in 1975, to a buyout firm, Dyson-Kissner-Moran, which purchased Dutton in 1981, to Everyman Library, which acquired Dutton in 1985, to Penguin Books, which purchased Everyman in 1986, and finally to Penguin Random House after Random House merged with Penguin in 2013. The author in this example would then have to contact Penguin Random House to obtain a reversion.

Despite these downsides of publishing mergers for authors, there is some evidence that the practice has benefitted the quality of trade books published. In a 1988 article on the topic, the New York Times argued that some mergers, such as Random House’s acquisition of Alfred A. Knopf in 1960, “strengthened both houses, thereby benefiting authors . . . and readers.” In fact, by the late 80s, the trade publishing industry was already dominated by a handful of major players, though the names and ownership structures have shifted over time.

Alternatives for Authors

It is important to keep in mind that there are now, and always have been, small and medium sized trade publishers, “boutique” publishers, and academic presses to fill some of the gaps left by consolidations among the largest trade publishers. Moreover, new and innovative publishers are emerging all the time: in 2020, Astra Publishing House was established as a literary-minded U.S. publishing house. Funded by Chinese media conglomerate, Thinkingdom Media Group, the firm is staffed with several trade publishing veterans. Similarly, this year, podcast host Zibby Owens announced the future launch of Zibby Books, which will publish just 12 books a year to start and feature an innovative profit-sharing program between authors and the firm’s employees.

While there are undoubtedly downsides for authors when trade publishers merge, it may also be that the latest transactions are simply part of a trend that has continued for years, albeit with different players and in different forms. In addition to the other types of publishers discussed above, open access publishing and self-publishing platforms have also risen in popularity in recent years, giving authors still other options when the trade publishing conglomerates are not appropriate for their works and goals.

Q&A with Peter Kaufman: Open Access Publishing and Access to Knowledge

Posted November 30, 2021

In today’s post, as a part of our series of open access success stories that spotlight noteworthy openly accessible books and their authors, we’re featuring Peter Kaufman of MIT Open Learning. Kaufman made his new book, The New Enlightenment and the Fight to Free Knowledge, available for free under a CC-BY license upon its publication by Seven Stories Press. In the book, Kaufman discusses “the powerful forces that have purposely crippled our efforts to share knowledge widely and freely.” By releasing his work under an open access license, Kaufman has pushed back on these forces while also ensuring that his work reaches a wide audience. You can find the open access edition of the book here.

Authors Alliance: Can you tell us why you opted to make The New Enlightenment and the Fight to Free Knowledge openly available?

Peter Kaufman: My book is about the forces that have constrained our access to knowledge in the modern world, some of the angels that have fought to increase that access, and some of the monsters that continue their efforts to suppress it. The book was made available from the very date of publication as a downloadable free edition – and under a CC-BY license, to boot, which allows for the broadest use and reuse possible. My publisher, Dan Simon of Seven Stories Press, is a progressive deeply committed to releasing “works of the radical imagination,” as he puts it – and to media experimentation of the kind we all support.

AuAll: Did your audience or the subject matter of your book influence your decision to publish openly?

PK: Yes, beyond the history in the book – it opens in the 16^th century – and the contemporary debates that I cover from the 20^th century on, I’m addressing progressives who benefit from encouragement and example, and those on the fence about the many advantages – social, cultural, economic – of open access. I have been a long-time OER advocate and work at MIT Open Learning – the pearly gates for open access in higher education.

AuAll: What results have you seen from publishing your book openly?

PK: Because of the subject matter but also because of the license, the book launched with public online discussions at law schools, book stores, libraries, universities, and other organizations at the cutting edge of the freedom-to-know, including the Internet Archive and Creative Commons. A program with Wikipedia is forthcoming. I believe that the progress resulted in numerous social media impressions that otherwise we would not have seen – and postings by advocates in media reform, copyright reform, and free software.

AuAll: Could you share some lessons learned or other suggestions for authors?

PK: Do it. My book makes the point that in the end – in the long term, as John Maynard Keynes used to say – we all wind up in the public domain. Accelerate that process. Gain new readers. Get the right kind of attention. Find like-minded advocates. Contribute knowledge freely to the world a little faster than you otherwise would have.

Permissions Tips and Tricks from our New Guide

Posted November 17, 2021

magenta cover of third-party permissions guide

Earlier this month, Authors Alliance released a brand new guide—the Authors Alliance guide to Third-Party Permissions and How to Clear Them. In today’s post, we will share some of our favorite tips and tricks from our guide on how authors might approach the permissions process and troubleshoot when they encounter difficulties. If you’d like to learn more, check out our new guide, available under a CC-BY license for you to download and share.

Start early, but not too early. Because getting permission from rightsholders to use third-party materials in your work can take some time, it is prudent to start early, as the process can take anywhere from days to months. But clearing permissions too early in your writing process can pose its own risks: in some cases, third-party materials end up being edited out of a book during the publisher’s editing process, and if authors have already cleared and paid for these permissions, they have assumed financial burdens that turned out to be unnecessary. For this reason, it is prudent to coordinate with publishers to ensure authors understand their permissions timeline.

You have allies. Authors tasked with clearing permissions may find the process daunting, as it is intimately related to the legal aspects of publishing, but often the responsibility of the author, who may understandably lack the legal sophistication of publishers. But it is important to keep in mind that publishers share an author’s goal of seeing their work published and successful. While a publisher may not be able to undertake the permissions process on an author’s behalf, they may be able to provide suggestions, form permission letters and logs, and other helpful information if you find yourself stuck. Similarly, academic scholarly communications offices and authors groups like Authors Alliance exist to support scholars and authors, and can sometimes provide general guidance or field questions.

Don’t be afraid to negotiate. Like a publication contract, a permissions agreement is a legally binding contract that can be enforced in court if it is breached. This means that the terms of the permission agreement are quite important, and it is prudent for authors to take care to understand these terms in order to avoid exposing themselves to liability. It also means that like publication contracts, permissions agreements can be negotiated. Authors should feel empowered to negotiate with rightsholders on fees and other terms, and in fact, authors who come to the table prepared to explain their position may be more likely to convince a rightsholder to compromise.

Remember fair use. As we discuss in our guide, the doctrine of fair use permits authors to use third-party materials in their own work without permission in some circumstances. For authors who think they may be able to rely on fair use, our permissions guide provides an overview of how an author might think through these issues. Authors who want to learn more about fair use can also check out our guide to Fair Use for Nonfiction Authors for a more in depth discussion of the doctrine.

Consider creative workarounds. When an author is not able to obtain the permission they need to make use of a particular third-party work, they may have other options that can still enable them to reach their goals for their works. Publicly licensed works, works that are in the public domain, and original commissioned works can serve as adequate substitutes in some cases.

Book Publishing in the 21st Century: What’s Antitrust Got to Do With it?

Posted November 9, 2021

Last week, the Department of Justice announced that it was filing an antitrust lawsuit to block Penguin Random House, the largest major trade publisher in the country, from acquiring Simon & Schuster, itself one of the so-called “Big Five” publishers (formerly the Big Six, until another major acquisition of Penguin Books by Random House in 2013). And this is not the first time the publishing world has been shaken up by antitrust: in recent years, the government has also initiated major antitrust lawsuits against Apple and Amazon for how these companies price e-books they sell. In the wake of these developments, authors may be asking themselves how these antitrust cases affect the publishing ecosystem and why antitrust litigation in publishing is becoming a more common occurrence. In today’s post, we will survey the landscape of antitrust publishing litigation and explain how the proposed merger of Random House and Simon & Schuster, as well as the antitrust lawsuit intended to stop it, might affect authors.

Antitrust and Publishing

Broadly speaking, antitrust law aims to protect market competition, ensuring that no one company wields too much market power. Antitrust laws have existed in the U.S. since the late 19th century, and have the goal of protecting consumer interests by ensuring that there are “strong incentives for businesses to operate efficiently, keep prices down, and keep quality up.” In the 21st century, the consolidation of publishing houses and book distributors over time into fewer and fewer companies with larger and larger market shares has begun to raise antitrust concerns. In this way, antitrust law seems a natural fit for publishing: over the past 50 years, publishers have steadily merged, resulting in a market dominated by only five major players.

Antitrust and E-Book Price Fixing

In recent years, the government has used antitrust law to mount challenges to various companies’ e-book pricing practices. The most prominent case was U.S. v. Apple, in which a judge found Apple had conspired with several large trade publishers to fix e-book pricing in its iBooks store, hampering retail price competition from other e-book sellers. These publishers were also implicated in the lawsuit, but elected to settle out of court. Ultimately, Apple was required to pay more than $140 million in consumer refunds in addition to other fees. More recently, a group of e-book purchasers brought a class action lawsuit against Amazon, alleging that by keeping its pricing for e-commerce lower than its competitors under a company policy, it engaged in anticompetitive behavior with regards to e-books and other products, harming purchasers of these products.

Antitrust and Authors’ Interests: United States v. Bertelsmann

The latest antitrust lawsuit in the publishing world, U.S. v. Bertelsmann (Bertelsmann is the German company that owns Penguin Random House), proceeds on a new theory of market competition. Rather than focusing on harm to consumers of books that might result from anticompetitive behavior, the Department of Justice emphasizes the harms to authors that would be likely to occur following the proposed merger. With just four major trade publishers to choose from, authors of trade books could be at a substantial disadvantage in negotiating for the best contract terms and highest advances. This is because rather than five competitors bidding for books, there would be just four, meaning less competition and less advantageous terms for authors who publish with the Big Five.

The government explains in its complaint that a Penguin Random House and Simon & Schuster merger would give that megapublisher revenues “twice that of their next closest competitor.” The new firm would wield tremendous market power, which could in turn disadvantage smaller publishing houses that lack the resources of the Big Five. Interestingly, the complaint does not discuss the fact that the 2013 merger of Penguin Books and Random House was already an unprecedented consolidation of power in the industry, as those publishers were the two largest trade publishers at the time. While this undoubtedly reduced competition between the publishers and likely harmed authors’ incomes in the same way as the new complaint alleges, no antitrust case was brought at the time. This change in the application of antitrust law to the publishing industry may be a consequence of a change in presidential administrations or the evolution of antitrust law generally.

Other authors groups have sounded the alarm about the proposed Penguin Random House and Simon & Schuster merger, emphasizing the harm that could occur to authors’ livelihoods if the merger goes through. By grounding its antitrust case in the interests of authors, the government has echoed these concerns and signaled that purchasers of books are not the only ones who matter when it comes to ensuring fairness in the book market.

Announcing the Authors Alliance Guide to Third-Party Permissions and How to Clear Them

Posted November 2, 2021

Today, Authors Alliance is thrilled to announce the release of a brand new educational guide for authors: Third-Party Permissions and How to Clear Them, authored and edited by Authors Alliance staff. We were inspired to create this guide, the fifth in our series of author guides, by the myriad questions we receive from authors about the third-party permissions process. The difficulty for many authors is that publication contracts usually place the ultimate burden for clearing permissions and paying any associated fees on the author, but the legal issues involved can be difficult to wrap one’s head around, particularly when approaching the process for the first time. We created this guide in order to fill that gap, demystifying the legal and procedural aspects that can make permissions so challenging.

Our guide walks authors through the permissions process, beginning with an overview of copyright and publication contracts to help readers understand why permissions are required in the first place. Then, we explain circumstances in which permission is not required (like when the use of third-party materials is a fair use or the materials are in the public domain) to help authors determine whether to request permission in the first place. Next, we offer some tips on how to identify and locate a rightsholder and go over the process of actually securing the permission. Finally, we conclude with a discussion of potential options for authors who are unable to obtain permission after making a concerted effort to do so.

Our new guide covers both text and image permissions, and we note throughout where these two types of permissions work differently. We created the guide with the goal of making the permissions clearance process as clear and comprehensible as possible in order to demystify a part of the publication process that can be intimidating for first time and veteran authors alike.

Our guide is available today for free as a PDF under a CC-BY 4.0 license, and will be available to purchase as a print book later this year. We are indebted to the expert reviewers, publishers, and authors who helped us make this guide a reality and ensured it reflected the realities of third-party permissions in publishing as well as serving the needs of our diverse body of members. We are delighted to bring you this new resource, and hope it helps take some of the sting out of permissions so you can focus on what really matters: creating new works of authorship that can contribute to the commons of knowledge and help you reach your goals as an author.

Happy 25th Anniversary to the Internet Archive!

Posted October 19, 2021

This month, the Internet Archive is celebrating its 25th anniversary. At Authors Alliance, we regularly partner with the Internet Archive on projects around preservation of digital works, controlled digital lending, and other issues in copyright policy. In today’s post, we will share some things we love about the Internet Archive and how the resources it provides can support authors and help them reach their writing goals.

Library Lending

The Internet Archive lends out e-books through its digital library. Many of these loans require readers to obtain a library card from the Internet Archive, but these library cards are free and available to all internet users. The Internet Archive’s digital lending program enables authors to reach readers who are not able to access physical libraries containing the books they are interested in reading. Several Authors Alliance members have expressed enthusiasm about seeing their books on the Internet Archive’s virtual shelves because it helps them reach wide audiences.

But the Internet Archive’s digital lending program is also a boon to authorship itself: as part of the writing process, authors often need to access other works for research purposes, and the Internet Archive’s lending program can make this significantly easier. Particularly during the COVID-19 pandemic, when many libraries have reduced physical services, digital library services like those the Internet Archive provide can fill the gap. The Internet Archive’s library has facilitated research on genealogy, mythology, and historical texts that has been integral to creating new works of authorship.

Digital Preservation

The Internet Archive’s library also serves the important purpose of preserving books that might otherwise vanish into obscurity, helping authors’ legacies live on past the commercial lives of their books. For example, in July, a New York Times article dove into the search for an obscure dating advice book pseudonymously written by bestselling author, Dan Brown, which the reporter was unable to track down. The piece lamented that readers were unable to find the book since it was out of print, and errors in ISBN assignment complicated efforts to obtain used copies. Though the article did not mention it, it turns out that the Dan Brown book in question is available to borrow on the Internet Archive’s digital library. The short commercial life of most books mean that many books fall into obscurity once they are out of print, languishing unseen on library shelves or in personal collections. But the digitization work the Internet Archive has done ensures that out of print books and other cultural ephemera are preserved for future authors, historians, and cultural scholars.

Public Domain Works

Outside of its collection of modern e-books which patrons can borrow, the Internet Archive maintains a collection of thousands of public domain works that are free for users to read online or download. The public domain—the body of works of authorship which are not subject to copyright protection, often because copyright has expired—is an important resource for authors and readers alike. Once a work is in the public domain, authors are free to use it in whatever way they wish, such as creating adaptations, retellings, or musical or film versions. This being said, it is not always easy to acquire free and accessible copies of public domain works. Free e-book editions of public domain works can sometimes be found on e-book retailer platforms like Amazon, but this is not always the case, and these e-books might still be accompanied by technical protection measures and licensing terms that curtail the uses authors can make of these works. Many of the most well-known contemporary stories are in fact derivative works based on works in the public domain, and the Internet Archive’s trove of public domain works can make it easier for authors to produce this type of new creative work.

Similarly, public domain texts are rich sources for text data mining (automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data). For now, text data mining researchers interested in studying literary works are mostly limited to public domain texts because of the technical protection measures placed on modern e-books (Authors Alliance and others have asked the Copyright Office to grant an exemption to DMCA § 1201 to allow for text and data mining on modern e-books, though the Office has not yet made its decision). This limitation on text data mining makes the free, accessible public domain works available on the Internet Archive all the more important for authors and text data mining researchers alike.

The Freedom of Information Act and Authorship

Posted September 14, 2021

The Freedom of Information Act (“FOIA”) is a federal statute that allows members of the public to request non-public documents from the federal government. Documents authored by the federal government are considered part of the public domain when it comes to copyright law, and FOIA is similarly premised on the idea that people have a right to know what their government is up to. FOIA requests are a key part of the investigative process for many journalists, but FOIA can be an incredibly useful research tool for many types of authors, as it enables access to new, primary sources of information about federal government activity.

In today’s blog post, we will introduce FOIA and explain how authors can benefit from this law. Next week, we will discuss FOIA litigation involving authors in order to offer takeaways for authors interested in using FOIA in the course of their research and writing.

What is FOIA?

The Freedom of Information Act was enacted into law in 1967. Under the Act, anyone can request documents produced and/or held by a federal government agency—such as the IRS, State Department, NASA, or ICE—which is obligated to turn over any documents it possesses that fall within the scope of the request. FOIA has enabled requesters to obtain investigative files compiled by the FBI, e-mails between certain government officials, and data collected by federal agencies, for example.

However, an agency may withhold or redact documents if they fall into one of nine delineated “exemptions” to FOIA. Broadly speaking, the exemptions protect national security interests, the integrity of ongoing law enforcement investigations, inter-agency deliberations, confidential commercial information supplied to the government by private entities, the privacy of individuals and law enforcement officials, and information that is exempt from disclosure under another federal statute. FOIA only applies to the executive branch of the federal government, meaning that it does not apply to the courts or Congress, nor does it apply to state governments. However, every state has its own public records law which allows requesters to obtain state government records under similar procedures. The procedure for filing a FOIA request varies by federal agency, but most can now be submitted online, via an online form on an agency’s website or via email. If you are interested in filing a FOIA request with a federal government agency, the federal FOIA website can direct you towards the right web form or point of contact.

Once a request has been made, the relevant government agency is required to issue a response within 20 business days, otherwise the request can be considered to be “constructively denied,” that is, denied based on the agency’s lack of response. The agency’s response, if one is provided, can grant the request in full, grant it in part and deny it in part, or deny the request in full. Then, the requester has an opportunity to appeal the agency’s response by sending another communication explaining why the request should not have been denied, in what is known as an administrative appeal. If the requester is not satisfied with the agency’s response to the appeal, they may file a lawsuit against the government agency to which the request was sent to enforce FOIA and try to compel the agency to produce the requested documents.

FOIA for Authors

Under FOIA, any person or entity (like a university or commercial business) can make a request, regardless of citizenship or the motivation for sending the request. Yet the FOIA statute does contain some protections for certain types of requesters, including journalists and authors.

First, FOIA provides for “expedited processing,” whereby an agency must respond in 10 business days, rather than 20, in some circumstances. One such circumstance of relevance to authors is when the requester is a “person primarily engaged in disseminating information” and there is an “urgency to inform the public concerning actual or alleged Federal Government activity.” This provision has typically been applied to journalists, but authors have requested expedited processing under the provision as well.

Second, FOIA allows for a “fee waiver” that excuses certain requesters from having to pay fees for copying and staff time employed performing a search for the records requested (though requesters may have to pay for copying costs incurred in excess of $100). Members of the news media are entitled to a fee waiver under the statute, as are “educational [and] noncommercial scientific institutions, whose purpose is scholarly or scientific research.” Authors affiliated with academic institutions are often granted such a fee waiver. To receive a fee waiver, an author must actually request one in their request, so it can be a good idea to ask for one if you think you might fall into either category. As a practical matter, it never hurts to ask!

One potential downside of FOIA as a research tool for authors is that the timing of an agency’s response can be somewhat unpredictable. While FOIA mandates that an agency must issue a final response within 20 business days, in practice, FOIA requests often languish for much longer than this, and in some cases, patience will eventually yield results. Yet writing projects often have their own timelines and deadlines, making it difficult to plan around the outcome of FOIA requests.

On the other hand, advancements in technology have in many ways made FOIA more accessible to authors and other requesters of government documents. In 1996, the Electronic Freedom of Information Act Amendments of 1996 were enacted into law. These amendments require agencies to make their “reading room” records available online, and encourage agencies to send records electronically wherever possible, among other electronic record-friendly provisions. Today, most responsive records are sent to requesters electronically, though there are exceptions. The E-FOIA amendments encourage agencies to send records in a more accessible, digital format. They have also had the effect of decreasing the delays and costs associated with copying and mailing physical documents, making FOIA more usable to authors and the general public.

Library Lending, Author Incomes, and Controlled Digital Lending

Posted August 17, 2021

In the debates around controlled digital lending (“CDL”), much has been said about whether and how CDL affects author incomes. Recently, the Internet Archive requested 10 years of sales data during the discovery phase of its ongoing lawsuit with several large publishers, seeking to support its argument that its digitization projects did not negatively impact book sales. As an authors’ group that represents the interests of authors who care deeply about their works reaching broad audiences, Authors Alliance is a unique voice in the conversation around the impact of different types of library lending on authors’ livelihoods. In today’s post, we will discuss the intersections between author income, traditional library lending, and CDL.

How Do Authors Make Money from Library Sales?

When an author signs a publication contract for her work, she is agreeing to be compensated by her publisher pursuant to the terms in the contract. The two main ways authors are paid are through an “advance against royalties”—an upfront payment or payments made when the contract is signed, the manuscript is delivered, and/or when the book is published—and through royalty payments. Once any advance paid to the author has “earned out” such that author royalties from sales exceed the advance paid to the author, the publisher pays the author a percentage of each sale. When a consumer purchases a book, the author then will receive a percentage of the sale based on the royalty rate set in her publication contract.

Like members of the public, libraries purchase books, and when they do so, authors are entitled to royalties on those sales. Importantly, libraries have purchased and lent books to patrons since time immemorial. In fact, in the mid-20th century, public libraries were the most reliable market for new books. But changes in the publishing ecosystem and widespread reductions in library budgets over time have led to a reversal of this pattern—in 2015, public libraries were responsible for just over 1% of book sales.

Once a library owns a physical book, the library is permitted to lend it out as many times as it likes, based both on public policy and what is known as the “first sale doctrine.” First sale doctrine is based on a provision within U.S. copyright law that allows the owner of a physical copy of a copyrighted work, like a book or DVD, to sell, lend, or otherwise dispose of that copy however she wishes, provided that it does not infringe any of the copyright holder’s exclusive rights. For example, the owner of a copy of a book can lend it out to her friend, lend it out to another friend after the first friend has returned it, and then give it away to a third friend. On the other hand, the owner of a copy of a book cannot make multiple copies to share with her friends simultaneously without infringing on the copyright holder’s exclusive rights of reproduction and distribution. Because of public policy favoring libraries’ roles in the knowledge ecosystem and the first sale doctrine, libraries can lend out copies of books they have purchased as many times as they are able.

How Does Traditional Library Lending Impact Author Income?

As discussed above, library lending results in author income when the libraries buy books in the first instance. But the effect of library lending on consumer book sales, has, perhaps surprisingly, not been the subject of extensive research—as of 2019, there had never been a major study on the impact of library lending on the publishing industry as a whole, but there has long been evidence that library patrons also purchase books, and may even do so more frequently than non-library patrons. In a 2020 survey, nearly a third of consumer respondents reported purchasing a book that they first found in a library, a number that was even higher for avid readers.

Library advocates have long championed the ability of libraries to bring attention to authors and their works, which often results in increased income for those authors. Many libraries host author events in which an author’s books are available for sale to attendees, and these events often result in more demand for that author’s books at the library, leading the library itself to purchase more copies, resulting in more author income. Libraries are also known to increase discoverability of books, both through author events and by exposing patrons to new books and new authors in other ways. In the 2020 survey mentioned above, 30% of respondents reported that, when a book they wanted to read was unavailable at their local library, they purchased the book, either online or at a local bookstore.

How Does Controlled Digital Lending Impact Author Income?

Controlled digital lending is a lending model many libraries across the country have implemented in recent years to increase access to works in their collections. CDL involves a library scanning a physical book it has purchased and is already in its collection, and then lending out this scanned copy in lieu of the physical book. Under the CDL model, libraries are not permitted to lend out more digital copies than they have physical copies at one time. This so-called “owned to loaned ratio” ensures that CDL stays within the bounds of what the first sale doctrine permits: each copy may be loaned out to only one patron at a time. Because libraries have already purchased the physical copies, authors have already received any royalty income they were entitled to from the sales.

Similar to interlibrary loans, CDL makes works available to readers who cannot access the physical spaces where the books are held. In this way, CDL operates as an analogue to traditional print lending: rather than a library patron having to physically travel to a library to check out the book they want to read, they can receive a digital copy loan instead, which comes with the same controls as print lending—limited check out times and a maximum number of loans at one time based on the number of copies the library has purchased. CDL seeks to replicate digitally what is difficult to achieve with physical books: sending a book to a reader who is interested in reading it, wherever she may be located, within the confines of limited library budgets. Many have also argued that CDL also constitutes a fair use, further bolstering the legal basis for the practice.

The role of CDL in the library ecosystem has taken on a new prominence during the COVID-19 pandemic, when libraries have reduced hours or shuttered physical spaces altogether. Over the past year and a half, CDL has served as one important way to bridge the gap and ensure readers can still access library books despite these limitations. And importantly, due to the requirement that a library purchase a print book in the first place and the limitations put in place to ensure that each loan is discrete and temporary, CDL does not hurt author incomes. In fact, due to libraries’ roles in increasing the discoverability of books, particularly when they are digitized, CDL may even result in more sales for authors whose books have been made available in this way.

Authors Alliance has long supported CDL as a way to help books reach readers. Many individual authors also support CDL, as it helps works reach readers who otherwise could not access them, bringing reputational benefits and the potential to increase book sales to consumers.

Update: Library E-Book Lending Legislation and Partnerships

Posted July 27, 2021

It is no secret that Authors Alliance loves libraries, and we support policies that help libraries fulfill their essential role of making knowledge and culture available and accessible to all. In recent months, several states have proposed and in some cases passed legislation that requires publishers to license e-books to libraries under “reasonable terms.” Similarly, bookselling and publishing giant Amazon has taken steps to make its content available to libraries, following years of refusal to license e-books to libraries altogether. In today’s post, we will share some of the details of these exciting developments.

State Legislation

Over the course of the past year, three state legislatures have introduced legislation that would impose limits on a publisher’s ability to sell e-books to libraries at a high cost. Under the current licensing model, libraries can pay as much as $60 per title for an e-book license, which often have very restrictive terms, whereas consumers can purchase an e-book license for the same title at a fraction of the cost. The first of these bills was passed in Maryland, and the New York state legislature has also recently approved the New York bill. A bill in Rhode Island is currently pending. Additionally, groups in Connecticut, Texas, Virginia, and Washington have reportedly begun advocating for similar legislation.

Maryland’s Library E-Book Lending Law

Maryland was the first state to enact legislation requiring publishers to offer libraries e-book and digital audiobook licenses on reasonable terms. The Maryland state legislature unanimously passed the bill in March, but before it was approved by the governor, it faced last-minute opposition from the Association of American Publishers (“AAP”), who claimed the bill was unconstitutional. Despite these challenges, Governor Larry Hogan announced that the bill was enacted into law in late May. The law will go into effect in January 2022, and requires publishers who license “electronic literary products” (which may be broader in scope than “e-books”) to the general public to “offer to license the product to public libraries in the State on reasonable terms that would enable public libraries to provide library users with access[.]” It remains to be seen what will constitute “reasonable terms” under the new Maryland law, but the Maryland Library Association has recently issued a statement providing guidance on what might constitute reasonable terms and how these might be developed.

Despite the tough opposition it faced from publishers, the Maryland law has been described by its proponents as “fairly mild.” This is because it does not fundamentally change the e-book licensing scheme employed by publishers, whereby e-books are temporarily licensed to libraries, who remain unable to actually own these digital copies. Instead, the law simply requires publishers to offer e-book licenses to libraries on terms they can afford in order to allow libraries to perform their essential function of serving patrons: readers are not served when libraries cannot afford e-book licenses. This problem took on particular salience during the pandemic, when many readers were unable to access physical books at all. The new Maryland law takes aim at this issue without disrupting the traditional e-book licensing model that publishers are reluctant to abandon. Nonetheless, the AAP has since affirmed its opposition to these legislative efforts, maintaining that the Maryland law and other state legislation like it are inconsistent with federal copyright law.

New York’s Library E-Book Lending Bill

Last month, the New York state legislature passed a bill similar to the Maryland bill. Just as in Maryland, state legislators voted unanimously in favor of the bill’s passage. The New York bill also requires publishers to offer libraries e-book licenses on “reasonable terms” if those e-book licenses are also available for purchase by the public. The New York bill proceeds from the premise that “[p]ublic libraries provide equitable access to information for all.” Because many New Yorkers (like many readers writ large) prefer digital books over physical ones, whether due to print or mobility disabilities or for ease of access, the bill takes aim at “discriminatory practices” such as e-book embargos, whereby libraries must wait months to purchase licenses for new e-books.

The New York bill has not yet been sent to Governor Andrew Cuomo for his signature, but advocates are “cautiously optimistic” that he will sign once it has been sent. The bill must be sent to the governor by the end of the calendar year, and once signed, will take effect after just 19 days. This means that while the New York bill is not yet law, it may well take effect before Maryland’s new law if sent to and signed by Governor Cuomo.

Rhode Island’s Library E-Book Lending Bill

In Rhode Island, the analogue bill to the Maryland and New York bills was re-introduced in April of this year after a similar bill last legislative session failed to gain momentum. The 2021 bill, which, like the Maryland legislation, includes digital audiobooks, was then recommended for further study by the House Corporations Committee, with no further updates since late April. Former Rhode Island state senator, Mark McKenney, penned an op-ed voicing his support for the bill, pointing out that “libraries lending books to patrons hasn’t put publishers out of business,” and calling out Amazon specifically for its policy of refusing to sell or license e-books it publishes to libraries and schools altogether.

Amazon and the Digital Public Library of America

In December 2020, Amazon announced it was in talks with the Digital Public Library of America (“DPLA”) to make thousands of books it publishes available to public libraries via the DPLA exchange. The long-awaited deal between the organizations was signed in May, and is set to go into effect sometime this summer. The partnership contemplates several different licensing models, including flexible “bundles” of lends and more traditional models involving time limits and restrictions on how many patrons can check out an e-book at a time. Librarians have applauded Amazon for offering the less restrictive “bundle” models, which provide additional flexibility for libraries. Unlike the state library e-book lending legislation, the Amazon-DPLA partnership will offer an alternative to the traditional licensing scheme.

Library advocates are cautiously optimistic about the Amazon-DPLA partnership, but also note that how much it will help libraries will depend on how Amazon prices its e-books for libraries, which is at this point unknown. Unlike the state library e-book lending legislation discussed above, the Amazon deal makes no mention of how library e-book licenses will be priced. Moreover, not all Amazon-published titles will be made available through the partnership—self-published Kindle originals and Audible audiobooks are not included in the program, for example. Another limitation of the Amazon-DPLA partnership is that it requires libraries to participate in the DPLA marketplace, and will make the e-books readable with the SimplyE reading app, an open source e-reading platform developed by the New York Public Library. Many library patrons today access e-books via more popular marketplaces such as OverDrive, and both iBooks and Kindle are much more popular e-reading platforms with which patrons are likely to be more familiar. Yet the Amazon-DPLA partnership is undoubtedly a step in the right direction towards ensuring greater access to books published by Amazon. Moreover, the deal is not exclusive, meaning that Amazon could develop similar partnerships in the future in order to make its e-books even more accessible to library patrons.

Copyright and American Independence Day

Posted July 6, 2021

In today’s post, we will be sharing some facts about copyright law and American Independence Day. While the two might not seem to be closely connected, both the history of the Fourth of July and the ways in which we celebrate today implicate copyright law in some unexpected ways.

Patriotic Public Domain Works: The Declaration of Independence

The Fourth of July celebrates the anniversary of the signing of the Declaration of Independence in 1776, whereupon the American colonies declared themselves to be independent from England. The Declaration of Independence is in the public domain for several reasons. Copyright buffs may recall that works published prior to 1926 are in the public domain, and this principle applies to this historic document. But in fact, the lack of a system of copyright protection in the American colonies at the time of the Declaration’s issuance means that it was probably never protected by U.S. copyright law. The first federal copyright law was not passed until 1790, and did not apply retrospectively, but only to new works of authorship. And today, literary works authored by the federal government are automatically in the public domain.

The Library of Congress makes scanned copies of early historic documents in the public domain, including the Declaration of Independence, available online. Because they are in the public domain, anyone is free to use these documents in whatever manner they wish—reading them aloud to crowds, translating them into other languages, or printing and distributing copies—without fear of copyright liability.

Patriotic Public Domain Works: “The Star Spangled Banner”

The American national anthem too is a part of the public domain. The lyrics to “The Star Spangled Banner” originate from a poem, “Defence of Fort M’Henry,” written by Francis Scott Key in 1814. The musical composition was taken from an earlier written song—“the Anacreontic Song,” official song of the British gentleman’s club, the Anacreontic Society—which was already in the public domain at the time, having been written in the late 1700s (you can hear a full recording of “The Anacreontic Song” on the Smithsonian’s website). Key’s poem set to this tune was subsequently re-titled “The Star Spangled Banner.” The patriot song remained popular for years, and was officially adopted as the American national anthem in 1931.

Interestingly, only Key’s lyrics were officially adopted as the national anthem. While “The Anacreontic Song” has remained the unofficial, traditional musical composition for “The Star Spangled Banner,” creators have been empowered to create their own adaptations, which could potentially rise in popularity and usurp the original tune (though this has not happened). These adaptations can also draw heavily from the original tune because it is in the public domain: such adaptations could have been considered derivative works that would infringe the copyright owner’s exclusive rights, were the song protected by copyright. Well-known adaptations of “The Star Spangled Banner,” like Igor Stravinsky’s four arrangements of the song and Jimi Hendrix’s instrumental rendition at Woodstock, may not have been possible without the freedom to adapt that the public domain enables.

Copyright in Revolutionary America

Prior to the issuance of the Declaration of Independence, when the American colonies remained under British rule, there was no copyright protection in the present-day United States. This is because the British copyright law, the Statute of Anne, did not apply to the American colonies. As a result, creators had little to no control over the dissemination of their works, and were not entitled to royalty payments. However, the largely agrarian nature of the present-day U.S. at the time made copyright protections less of a priority for the colonists and revolutionaries. Over the next 14 years, as the country evolved, the Continental Congress and later the Congress of the Confederation (the legislative body established under the Articles of Confederation) allowed for private copyright acts and state law copyright acts, resulting in inconsistencies across states and limited protection for creators. Finally, the first federal copyright bill was signed into law by George Washington in 1790. This law mirrored the Statute of Anne nearly word for word, though U.S. and U.K. copyright laws have evolved in different ways in the intervening century.

The Fourth of July Today: Copyright in Fireworks Displays

Across the U.S., many celebrate the Fourth of July with fireworks displays, which can be expressive and creative. But fireworks displays are an example of the kind of creative expression that copyright typically does not protect. This is because of the fixation requirement in American copyright law: for creative expression to receive copyright protection, the Copyright Act requires that it be fixed in a tangible medium of expression. The fixation requirement means an improvised speech which is not recorded or documented in any way cannot protected by copyright, for example. And similarly, fireworks displays are simply too ephemeral and intangible to satisfy the fixation requirement.

But the story does not end there: photographs or film recordings of fireworks displays are eligible for copyright protection, because those types of expression are fixed—recorded on film or saved on a digital camera. Images or recordings of fireworks displays further possess the “modicum of creativity” necessary for a work to be protected, since the person who captured the image or recording made at least some creative choices in how they captured the display. Additionally, a recent court case found that “command protocols” and the underlying computer codes for the actual launching of fireworks were copyrightable as software, which is a type of literary work eligible for copyright protection. So while the actual display of fireworks—what you may have witnessed this Independence Day—cannot be protected by copyright, fixed images of the fireworks and the computer program that made their display possible can be protected.