An aspect of our class-action copyright infringement action over Google’s scanning of millions of library books was before a federal appellate court today. Before we get to that, let’s review where we are.
Last May, Judge Chin made a key ruling, certifying a class of U.S. authors with registered copyrights in the books scanned by Google. In July, attorneys for authors and for Google filed cross-motions for summary judgment (essentially, judgment following discovery and depositions based on undisputed facts) with Judge Chin. The outcome of those motions will almost certainly turn on whether Judge Chin deems Google’s book digitization project to be a fair use.
Does copyright exist to encourage creative expression, full stop, or does it also seek to motivate the commercialization of creative works?
On Thursday, the National Research Council of the national science, engineering and medical academies* issued a 102-page report calling for research to provide empirical data that better inform copyright policy decisions in the digital age. The National Research Council is influential in Washington; its report, Copyright in the Digital Era: Building Evidence for Policy, is likely to be widely cited. Terry Hart of Copyhype, however, says that the NRC report mishandles a fundamental issue — the purpose of copyright – and cites a 2012 Supreme Court decision to back him up.
The NRC report’s characterization of the tone of the copyright debate (“strident”) is indisputable, so is its statement that the debate is “between those who believe the digital revolution is progressively undermining the copyright protection essential to encourage the funding, creation, and distribution of new works and those who believe that enhancements to copyright, are inhibiting technological innovation and free expression.”
The NRC then makes the case for more data:
Harper Lee is suing her former agent, Sam Pinkus, to recover royalties from To Kill a Mockingbird dating back to 2007, when he allegedly tricked her into signing over copyright to the classic novel as she was in an assisted living facility recovering from a stroke.
“Pinkus knew that Harper Lee was an elderly woman with physical infirmities that made it difficult for her to read and see,” Lee’s lawyer Gloria Phares says in a complaint filed in federal court last week, according to Bloomberg and other news sources. The 87-year-old author regained rights to the novel in 2012, but Pinkus has continued to collect royalties.
Despite its continuing disagreement with Barnes & Noble, Simon & Schuster did not experience a significant drop in first quarter sales–just 3 percent to $171 million–as the company took steps to make up for business lost as it’s trying to negotiate a resolution with the bookseller.
Downloading ebooks from your local public library is poised to become much more widespread.
Anthony Marx, New York Public Library President, announced in an op-ed in today’s NY Times (subscription required) that Hachette Book Group has now joined the other Big Six publishers in agreeing to allow e-lending of its titles. Citing surveys that show that most Americans don’t know that libraries offer ebooks, Marx sees a need “to educate patrons that they can download library e-books anywhere and on any device.” Library e-lending, when permitted by publishers, generally allows one-at-a-time, two week uses of ebooks. Library users may download the ebooks from their homes after using their library cards to log in to the library’s website.
Marx discusses the variations in e-lending terms among the Big Six publishers: Penguin and Simon & Schuster offer their entire lists to public libraries through licenses that expire after a year; HarperCollins also offers their entire list with licenses that expire after a title is downloaded 26 times; Random House offers its entire list for unlimited uses, charging a premium for the license; and Macmillan makes only a limited portion of its list available.
The numbers show substantial room for growth in ebook downloads from the NYPL (and, no doubt, other public libraries):
The New York Public Library had 100,000 copies of 37,000 digital titles in circulation last year, compared with 6.5 million copies in circulation of 1 million print titles. Just as libraries decide which physical books to purchase and how many of each, we now will be deciding the same for e-books.
As those with library cards learn that they “can download library e-books anywhere and on any device,” we may soon see a rapid shift in ebook buying habits.
Are Copyright Laws “Still Working in the Digital Age”? House Judiciary Chair Pledges Comprehensive Review
Bob Goodlatte, R-Va., chair of the House Judiciary Committee, announced last Wednesday that the committee “will hold a comprehensive series of hearings on U.S. copyright law in the months ahead. The goal of these hearings will be to determine whether the laws are still working in the digital age.”
Goodlatte made his remarks at the World Intellectual Property Day celebration at the Library of Congress, and invited interested parties to submit their views to the Judiciary Committee. His full statement is here.
Goodlatte noted that Maria Pallante, Register of Copyrights, had called for such a comprehensive review leading to “the next great copyright act” in testimony on March 20th. In her prepared statement, Pallante said that “authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.”
In her March 20th testimony, Pallante made clear her view that “the issues of authors are intertwined with the interests of the public.” Authors, Pallante said,
are not a counterweight to the public interest but instead are at the very center of the equation. In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists. A law that does not provide for authors would be illogical — hardly a copyright law at all.
Pallante pointed out, however, that the last major overhaul of U.S. copyright law, the 1976 Copyright Act, took two decades to negotiate. We expect to be hearing much more about this in the months ahead.
Ebooks, International Part 2: In Russia, Amazon Readies Kindle. Can Harvard/Goldman Alum Make It Work?
Earlier, we reported on ebook developments in Brazil. Now, on to Russia.
Ingrid Lunden of TechCrunch reports that Amazon appears to be getting ready open ebook operations in Russia. Although Amazon hasn’t confirmed the report, on April 19 Forbes posted news at its Russian website that Amazon had hired Arkady Vitrouk to head its Russian office. Vitrouk is the former CEO of ABC-Atticus, a Russian publishing conglomerate owned by Alexander Mamut, which Forbes says is one of Russia’s 50 wealthiest people.
Lunden of TechCrunch confirmed Forbes’ report through Vitrouk’s LinkedIn profile, which lists him as director of Kindle Content for Russia. (It also shows that he attended Harvard Business School and worked at Goldman Sachs before joining Atticus Publishing Group and now Amazon.) Lunden dug further, finding that Amazon is seeking to hire two content acquisition managers for Kindle Russia, and a senior manager for Kindle content pricing in Russia.
Ebook pricing may prove to be particularly tricky in Russia, where digital piracy is rampant. One commenter on Forbes’ Russian site seems to think so, asking what sense it made for Amazon to enter the Russian market, “if the books on the Internet [I] will not be buying one.” (Translated by Google.)
The Russian Federation has been on the U.S. Trade Representative’s Priority Watch List for years. (Brazil, which we discussed in an earlier post, lags Russia as a haven for piracy in our government’s estimation. The USTR places it on its Watch List — without priority.) Perhaps things in Russia will soon improve, however. On December 21st, the USTR announced that it had reached an agreement with Russia on an Intellectual Property Rights Action Plan. The IPR Action Plan calls for Russia to take various steps to combat online piracy.
Then again, maybe not. The new IPR Action Plan was announced shortly after the 6-year anniversary of a US-Russia bilateral agreement (referred to here, p. 23) on the protection and enforcement of intellectual property rights. Russia’s been on the US Trade Representative’s Priority Watch List ever since.
Arkady Vitrouk has his work cut out for him.
The U.S. has a strong lead over other countries in ebook adoption. How are things going elsewhere? Recent news from Brazil and Russia shed some light on the state of the ebook market in two key emerging economies. We’ll present these in two bite-sized reports.
Edward Nawotka reports in Publishing Perspectives that ebook sales have lept an order of magnitude in Brazil in recent months. December 5, 2012, was “D-Day” (digital day) for the Brazilian book world — Kobo, Google, and Amazon all launched their ebookstores that day. Apple had begun selling Brazilian titles in October.
Six large Brazilian publishers had been preparing for their D-Day for more than two years. In March 2010, just as the first iPads were scheduled to ship in the U.S., the publishers announced plans to distribute ebooks through a jointly developed platform known as DLD. That platform accounts for an estimated 30% of Brazilian ebook sales at the moment, Nawotka reports. Apple, Amazon, Google, and Kobo all distribute through DLD, through nonexclusive arrangements.
The early ebook market leader? Apple, according to DLD’s figures, with 29% of sales in March, followed by Amazon with 22%, Google 18%, Saraiva (a Brazilian bookseller) 15%, and Kobo 12%.
These sales amount to little, so far: ebooks are a tiny portion of the Brazilian book market. That’s changing fast. DLD’s sales have increased nearly tenfold since Apple’s October 2012 entry into the market, reaching nearly 44,500 units in March.
We’ve been frequent critics of Amazon’s tactics in conquering established book markets, but credit is due to the company for doing what many would have considered impossible: creating a genuine market for novellas and novella-length nonfiction. In the New York Times this morning, Leslie Kaufman profiles Kindle Singles editor David Blum and cites Amazon’s statistic that about 28 percent of the 345 Singles published since January 2011 have sold more than 10,000 copies. Kindle Singles are a curated list of short e-books (5,000 to 30,000 words in length) available through Amazon’s Kindle Store.
Though publishing arrangements vary — some Kindle Singles are published by traditional publishers, others are self-published or put out by an emerging group of new publishers, such as Byliner — authors may earn as much as 70% of the proceeds from sales. Since bestselling Kindle Singles sell for an average price of $1.50 or so, a self-published author selling 10,000 or more Singles would likely earn revenues of $10,000 or more.
David Mamet’s decision to self-publish his latest book through a new service offered by his literary agency, ICM Partners, adds fuel to the debate raging over whether authors will do better on their own than with a traditional publishing house.
“The announcement by ICM and Mr. Mamet suggests that self-publishing will begin to widen its net and become attractive also to more established authors.” Leslie Kaufman wrote last week in the New York Times.
The news has drawn hundreds of responses from bloggers, authors and others, including bookseller Marion Abbott, who in the Sunday edition of the Times warned about the perils of self-publishing.
The latest post by Huffpo blogger Julie Gerstenblatt offers a cautionary tale that echoes Abbott’s sentiments.
A far more optimistic picture comes from Jon R. Anderson of the Navy Times, who on Friday urged service members to get their story out, writing, “While self-publishing used to bear the vanity press stigma… independent publishing is quickly becoming the preferred road to readers for many authors.”
Self-publishing has indeed borne a stigma, even though it has a history to be proud of. Walt Whitman’s “Leaves of Grass,” Irma S. Rombauer’s “Joy of Cooking,” and Christopher Paolini’s “Eragon” are prominent examples of self-published works from the 19th, 20th and 21st Centuries. Is that stigma now gone? Maybe not, but the stigma seems to be fading as the economics of self-publishing improve for some authors.