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  • AAP applauds the Senate Judiciary Committee for advancing S.2992, the American Innovation and Choice Online Act, on a strong bipartisan 16-6 vote. This legislation represents a critical step in Congress’ ongoing effort to modernize and reinvigorate our country’s competition laws and rein in anticompetitive behavior by dominant online platforms that for far too long have significantly harmed the marketplace for disseminating published works. Among other things, the legislation would improve the ability to take meaningful action against online platforms that inhibit competition through self-preferencing, tying, or using non-public data to gain an unfair advantage over publishers and other business users. The legislation is the Senate companion to H.R.3816, which passed through the House Judiciary Committee last year with AAP’s support.

    We are especially grateful to Senators Klobuchar and Grassley for their leadership in introducing this bill in the Senate and for their hard work and dedication in growing support and momentum for the bill. We look forward to continuing to work with Members of the Senate and House of Representatives to support the strongest possible legislation to level the playing field and hold dominant online platforms accountable for their anticompetitive conduct. We also extend our thanks to Senate Judiciary Committee Chairman Dick Durbin for his leadership and to all the Senators on the Judiciary Committee who voted to advance this critical legislation.

  • On January 14, 2022, the Maryland Attorney General’s office filed an answer to AAP’s lawsuit, Association of American Publishers v. Brian Frosh, in his official capacity as Attorney General of the State of Maryland.  As the lawsuit explains in great detail, Maryland has enacted a state copyright law that seeks to govern transmissions of literary works within its borders—a law that clearly conflicts with the United States Copyright Act, unconstitutionally interferes with interstate commerce, and violates the Constitution’s Due Process clause by mandating vague and unspecified licensing requirements.

    Following is a comment from Maria A. Pallante, President and CEO, Association of American Publishers in response to Maryland’s filing yesterday. 

    “The Maryland Attorney General’s arguments are unresponsive and unpersuasive as to the legal problems presented in our lawsuit.  By interfering with the exclusive rights that are the basis of copyright transactions in online markets, including library markets, the Maryland Act creates confusion in a vibrant digital economy, undermines publishing contracts, and preposterously threatens copyright owners with penalties for following the uniform authority of the U.S. Copyright Act.  The state has also badly misunderstood the premise and operation of the copyright framework and its constitutional origins, in which public access to original works of authorship is not achieved by government fiat or manipulation of terms, but rather through a system of economic incentives that foster investment, rewards, and continuous market innovations during a statutory term of protection.

    "AAP will continue to pursue this case forcefully in federal court because a uniform and effective Copyright Act is essential to sustaining a vibrant and independent publishing industry in the United States. We also take this moment to recognize the countless authors across numerous creative disciplines that make this world more interesting, knowable, and inspiring, and for whom literature, music, movies, art, and other creative works are a life-long, intellectual endeavor marked by a combination of risk and remuneration.”

  • Trade (Consumer Book) Revenues up 5.7% in November, and up 13.0% Year to Date

    The Association of American Publishers (AAP) today released its StatShot report for November 2021 reflecting reported revenue for all tracked categories, including Trade (Consumer Books), K-12 Instructional Materials, Higher Education Course Materials, and Professional Publishing.

    Total revenues across all categories for November 2021 were up 8.3% as compared to November 2020, coming in at $1.3 billion. Year to date revenues were up 13.1%, at $14.3 billion for the first eleven months of the year.

    Trade (Consumer Books) Revenues

    Trade (Consumer Books) sales were up 5.7% in November, coming in at $990.4 million.

    In terms of physical paper format revenues during the month of November, in the Trade (Consumer Books) category, Hardback revenues were down 1.5%, coming in at $455.1 million; Paperbacks were up 8.9%, with $277.0 million in revenue; Mass Market was up 56.1% to $22.8 million; and Board Books were up 7.3%, with $23.0 million in revenue. 

    eBook revenues were up 5.6% for the month as compared to November of 2020 for a total of $91.5 million. The Downloaded Audio format was up 21.9% for November, coming in at $68.3 million in revenue. Physical Audio was down 37.5% coming in at $2.6 million.

    Year to date Trade revenues were up 13.0%, at $8.7 billion for the first eleven months of the year. Hardback revenues were up 12.8%, coming in at $3.4 billion; Paperbacks were up 19.9%, with $2.8 billion in revenue; Mass Market was up 9.7% to $221.5 million; and Board Books were up 8.6%, with $192.3 million in revenue.

    eBook revenues were down 4.6% as compared to the first eleven months of 2020 for a total of $984.0 million. The Downloaded Audio format was up 14.9%, coming in at $700.3 million in revenue. Physical Audio was down 15.5% coming in at $20.3 million.

    Religious Presses

    Religious press revenues were down 6.0% in November, coming in at $65.6 million. Hardback revenues were down 14.4% to $43.2 million in revenue, Paperback revenues were up 7.8% to $7.8 million, eBook revenues were up 2.0% coming in at $3.7 million, and Downloaded Audio revenues were up 26.3% at $4.1 million.

    On a year-to date basis, religious press revenues were up 12.0%, reaching $650.8 million. Hardback revenues were up 14.3% at $402.6 million in revenue, Paperback revenues were up 5.4% to $94.0 million, eBook revenues were down 8.2% at $45.8 million, and Downloaded Audio revenues were up 9.4% at $37.0 million. 

    Education

    During November of 2021 Education revenues were $220.3 million, up 23.4% compared with November of 2020. Year to date education revenues were $5.1 billion, up 14.1% as compared to the first eleven months of 2020.

    Revenues from Higher Education Course Materials were up 22.2% for the month, as compared to November of 2020, coming in at $146.5 million. Year to date Higher Education was up 2.3%, at $2.9 billion.

    PreK-12 Instructional Materials revenues were up 25.9% for November 2021, at $73.8 million. Year to date PreK-12 revenues were up 35.0%, coming in at $2.2 billion. More in-depth information on PreK-12 Books and Materials Monthly is included in AAP’s PreK-12 monthly report.

    The performance of the Education categories during this month may reflect multiple factors, including rebounding business post-COVID.

    Professional Books

    Professional Books, including business, medical, law, technical and scientific, were down 3.2% during the month, coming in at $27.0 million. Year to date Professional Books revenues were $347.5 million, up 4.3% as compared to the first eleven months of 2020.

    AAP’s StatShot

    AAP StatShot reports the monthly and yearly net revenue of publishing houses from U.S. sales to bookstores, wholesalers, direct to consumer, online retailers, and other channels.  StatShot draws revenue data from approximately 1,360 publishers, although participation may fluctuate slightly from report to report. 

    StatShot reports are designed to give ongoing revenue snapshots across publishing sectors using the best data currently available. The reports reflect participants’ most recent reported revenue for current and previous periods, enabling readers to compare revenue on both a month-to-month and year-to-year basis within a given StatShot report.

    Monthly and yearly StatShot reports may not align completely across reporting periods, because: a) The pool of StatShot participants may fluctuate from report to report; and b) Like any business, it is common accounting practice for publishing houses to update and restate their previously reported revenue data. If, for example, a business learns that its revenues were greater in a given year than its reports first indicated, it will restate the revenues in subsequent reports to AAP, permitting AAP in turn to report information that is more accurate than before.

  • On December 29, 2021, New York State Governor Kathy Hochul vetoed a bill put forth by the legislature that posed an unjustified attack on the creative industries of New York.  Shockingly, the bill would have forced authors, publishers, and other copyright owners to grant involuntary, digital licenses to New York public libraries under state-imposed terms, in full conflict with the U.S. Copyright Act and the comprehensive purpose that it serves.  The bill attached penalties for non-compliance, effectively chilling copyright owners from pursuing the full benefit of their copyright interests and literary properties within the state.  

    “We thank Governor Hochul for taking decisive action to protect the legal framework that has long incentivized the American private sector to invest in, publish, and distribute original works of authorship to the public, in service to society.  The bill that she vetoed was rushed through the state legislature in response to a coordinated, misinformation campaign supported by Big Tech interests and lobbying groups that are notorious for wanting to weaken copyright protections for their own gain.

    Contrary to the rhetoric employed by the bill’s proponents, there is no such thing as mild harm or minor preemption when it comes to violating the U.S. Constitution, and there is nothing judicious about undermining the free expression protections and licensing decisions that make books and other invaluable creative works possible and sustainable in the first place.  It goes without saying that publishers strongly support public libraries, without which the world would surely have fewer readers. But today the Governor has affirmed that New York has a deep appreciation and enduring respect for the cultural and economic contributions of authors and publishers, and a clear understanding that our public libraries also depend upon a vibrant creative economy.”

  • Suit Seeks to Overturn Unconstitutional Law That Undermines the Intellectual Property of Authors and Publishers

    The Association of American Publishers (AAP), the national trade association for the U.S. publishing industry, today filed suit against the Maryland Attorney General seeking to enjoin and overturn an unconstitutional Maryland law that directly conflicts with the federal Copyright Act by forcing any publisher, domestic and foreign, to make their literary works available to Maryland public libraries in electronic book and audiobook formats according to timing, pricing, and other terms mandated by the state under threat of penalty. 

    Slated to take effect on January 1st, 2022, the Maryland law gives libraries unprecedented control over basic copyright transactions that are clearly reserved to those who write, develop, invest in, distribute, and make publicly available the invaluable array of novels, biographies, historical and political works, poetry, scholarship, and course materials that are the mission of publishing, and which together fuel entertainment, human empowerment, and scientific progress on a global basis.  In seeking to regulate books, Maryland disregarded the testimony of publishers and authors, established law, and market facts. 

    Maryland Act Preempted by Federal Law

    “Maryland does not have the constitutional authority to create a shadow copyright act or to manipulate the value of intellectual property interests,” commented Maria A. Pallante, President and CEO of the Association of American Publishers and former head of the United States Copyright Office.  “It is unambiguous that the U.S. Copyright Act governs the disposition of literary works in commerce—and for that matter, all creative works of authorship.  We take this encroachment very seriously, as the threat that it is to a viable, independent publishing industry in the United States and to a borderless copyright economy.”  

    The complaint, filed in federal court in Maryland, argues that the Maryland law is preempted by the United States Copyright Act, unconstitutionally interferes with interstate commerce, and violates the Constitution’s Due Process clause by mandating vague and unspecified licensing requirements.

    The Marketplace Works

    There is no justification for Maryland’s intrusion into the publishing industry, even if were not preempted.  Although print remains an extremely popular format among readers of all ages, libraries today also have access to a dizzying number of titles in ebook and audiobook formats, just as retail channels do.   Publishers must, of course, make balancing decisions about the timing, pricing, and formats of their books, in order to ensure a return on their investments and to achieve the long-term potential value of any particular work.   These incalculable decisions are the means by which all content businesses compete, endure, and serve the public interest, whether they invest in books, music, movies, or newspapers.  Moreover, the legislation is redundant, as publishing houses have long been on the front lines of supporting libraries, from their earliest incarnations to the age of the Internet. 

    “The fact is that the vast majority of AAP members already make their full digital catalogs available to public libraries across the country, with the result that Maryland’s lending institutions see millions of digital checkouts each and every year, giving them a broader reach than ever before in their history,” commented Ms. Pallante.  “And on a national basis, America’s lending institutions will see over half a billion digital checkouts over the course of 2021 alone, according to Overdrive, the leading digital reading platform for libraries and schools worldwide.”

    Publishing as a Business, and Key Contributor to The National Economy

    The Maryland Act is an impermissible and unconstitutional overreach into federal copyright law and an unjustified effort to divert copyright policy away from the U.S. Congress to state assemblies, at the expense of longstanding incentives and protections that are the foundation of our creative economy.

    The authority of the federal Copyright Act is the basis of all content-driven businesses, and has made America’s core copyright industries, including publishing, key drivers of the national economy, employing 5.7 million workers and contributing an annual $1.5 trillion to the U.S. GDP.

    For these reasons, some twenty-five years ago, the United States and hundreds of other countries addressed copyright interests arising in the context of the digital environment through a pair of binding instruments known as the WIPO Internet Treaties. These treaties, which the United States duly affirmed through a combination of existing law and the 1998 Digital Millennium Copyright Act, make clear that the copyright owner has the exclusive right to authorize the digital dissemination or transmission of a creative work, including in new and innovative formats and irrespective of whether the customer is in a bookstore, library, or the comfort of their own home.  Intergovernmental leaders paved the way for the very innovations that led to ebooks and audiobooks, and which will, no doubt, lead to future exciting formats made possible by a free and ever-evolving marketplace.

    The full complaint can be found here.

    Declaration of Maria A. Pallante, President and CEO, Association of American Publishers, can be found here.

    Declaration of the Authors Guild in support of the plaintiff's motion for preliminary injunction can be found here.

    The plaintiffs motion for preliminary injunction can be found here.

    Memorandum in support of plaintiff's motion for preliminary injunction can be found here.

    AAP is represented by Oppenheim + Zebrak LLP.

    About AAP

    AAP | The Association of American Publishers represents the leading book, journal, and education publishers in the United States on matters of law and policy, advocating for outcomes that incentivize the publication of creative expression, professional content, and learning solutions. As essential participants in local markets and the global economy, our members invest in and inspire the exchange of ideas, transforming the world we live in one word at a time. Find us online at www.publishers.org or on Twitter and Instagram at @AmericanPublish.