The Association of American Publishers covered a lot of ground in its 90-minute annual meeting which, for the second year in a row, was conducted via Zoom. As part of their remarks, Brian Napack, AAP chair and CEO of John Wiley, and Maria Pallante, CEO of AAP, made clear that protecting copyright remains the top priority for the association.
Minnesota Senator Amy Klobuchar voiced her concerns over the power of Big Tech in accepting the AAP’s 2021 Award for Distinguished Public Service. Keynote speaker Don Lemon (CNN host and author of This Is the Fire), urged publishers to publish more authors of color, while closing keynoter Brad Stone focused his remarks on Amazon, the subject of two of his books, The Everything Store and the recently released Amazon Unbound.
In his opening remarks, Napack praised the publishing community for “keeping the river of ideas flowing” during the pandemic, especially as the industry faced threats and challenges from different quarters. He promised that AAP would continue to fight against forces that “chip away” against freedom of expression as well as those who seek to erode copyright protection.
Pallante said that the financial results of publishers, particularly for trade publishers, during the pandemic proved that readers have never lost interest in good stories, and that the importance of books to people was highlighted during the lockdown. That publishers were able to quickly meet the increased demand for books reflects the resiliency of the industry, Pallante said, and also shows that “there has never been a better or more important time to be in publishing.”
To make sure that publishing remains a good business to be in, AAP’s job, Pallante said, “is to ensure that you can compete fairly in the modern marketplace.” Regrettably, she continued, “there are actors who seek to weaken your legal protections in order to advance their business interests, whether that interest is in bloating the fair use doctrine to illogical boundaries or, more blatantly, appropriating and monetizing your works without permission.”
In Pallante’s view, the exclusive rights delineated in the Copyright Act are under assault, as is an effective enforcement framework, and she said the DMCA, which governs how infringing content on websites can be taken down, “is badly in need of updating.” She also lamented the lack of a competitive marketplace in which authors’ works can be discovered and publishers can compete “without unfair control or manipulation from dominant tech giants.”
Challenges to copyright protection are also happening at the state level, Pallante warned, where library lobbyists and “tech-funded” special interest groups are working to “divert copyright protection away from Congress to state assemblies,” an apparent reference to Maryland’s passage of a law late last week that would force publishers to make any digital content they license to consumers available as “an electronic literary product” to public libraries in the state “on reasonable terms.” The AAP opposed the law, and in her remarks, Pallante argued that these state efforts “are clearly preempted by the express language of the federal Copyright Act,” while also spinning a “false narrative.”
Pallante said libraries are an important part of the publishing ecosystem, but added that, “authors, publishers, and bookstores also have policy equities, which is why Congress enacted a singular cohesive federal copyright system that has address the ownership and sale of books since 1790.” She also hit back against what she said are lobbyists pushing states to fund open educational resources “through ugly misinformation campaigns aimed at publishers” and designed to replace publishers’ materials.
In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”
Tariffs and Tech
Away from the copyright front, Pallante updated members over the tariffs slapped on products manufactured in China, including most books printed there, by the Trump Administration. All those tariffs remain in place, and Pallante said that the Biden Administration’s overall review of America’s China policy continues to undergo review—and that it is not clear what the administration's position on tariffs will be.
Klobuchar, whose new book, Antitrust: Taking on Monopoly Power from the Gilded Age to the Digital Age, was published by Penguin Random House in April, said she senses that the time is right for a renewed antitrust movement. She has introduced legislation that she hopes will enable Congress to better fight Google, Facebook, and Amazon. “I don’t want to destroy these companies,” she said—but she does want to give Congress the ability to allow more players to enter their respective markets.
Stone was not overly optimistic that Amazon will be broken up anytime soon, saying “it is too late to roll back the clock.” He did say that the company sometimes responds to criticism, particularly if that criticism may cast them in an unfavorable light with consumers. He cited Amazon’s position on its Most-Favored-Nation clauses, which ensures that other retailers can’t charge lower prices for a company’s product than the price on Amazon. Amazon dropped them in Europe after being challenged by governments there and, although they have been modified in the U.S., last week the attorney general of Washington, D.C., sued the company over its use of MFN clauses in its third-party business. Stone said he wouldn’t be surprised if Amazon walks away from the use of MFNs.
He also said that while Bezos still likes the book business, he views that area as a child from a previous marriage and is more interested in new businesses like Alexa and Prime Video. Stone speculated that this change in priorities may give publishers some opportunity to find better deals.
Stone started his presentation by displaying three “books” that critiqued his Amazon Unbound book. The algorithm-driven titles made no sense, but were still available for sale on Amazon. He said that this exemplifies a fundamental problem at the company. Businesses are developed by people and with attention to detail, but in a drive to scale, the businesses are turned over to be run by algorithms, which, Stone said, often lead to serious mistakes. The automation of many of Amazon’s functions extends to discussions the company has with the companies it works with, Stone pointed to “vendor central,” the only place where most publishers can communicate with their largest customer.