Composite of the logos of the Association of American Publishers, the Publishers Association (UK), and the Federation of European Publishers

Copyright exhaustion, eLending and the future of platform responsibility in the EU have all been in the news this last month. We have a quick look at the stories and reactions.

The status of copyright protections and intellectual property rights has continued to face challenges in different regions of the world, with some developments being more positive for the publishing sector than others.

In December 2021 in the United States, the Governor of the State of New York, Kathy Hochul, vetoed a proposed bill that would have forced authors, publishers and other copyright owners to grant involuntary digital licenses to New York public libraries. In response to the veto, the Association of American Publishers (AAP) stated, “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… 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.”

In January 2022, the AAP also responded to a filing on behalf of the Maryland Attorney General’s office regarding AAP’s lawsuit concerning the state’s copyright law (that seeks to govern transmissions of literary works within its borders). Maria A. Pallante, the President and CEO of the AAP commented, “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… “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”.

Meanwhile, in the United Kingdom, the Publisher’s Association welcomed the government’s announcement that it would maintain the UK’s current laws on exhaustion of intellectual property rights, following a consultation conducted the previous summer. Stephen Lotinga, Chief Executive of the Publishers Association, said: “We are delighted that the government has chosen to maintain the UK’s gold standard copyright regime, which our world-leading creative industries are built on, and that ministers have listened to authors, readers and the wider industry on the risks of any change. The evidence is clear, any weakening of our Intellectual Property laws would be devastating to UK creators, and we will continue to make this case to government in any future discussions of the matter”.

Finally, at the level of the European Union, the Federation of European Publishers (FEP) regretfully noted that the European Parliament had missed an opportunity to more effectively combat illegal content online. The Parliament had adopted a position on the proposed Digital Services Act (DSA) Regulation – limiting the potential of the DSA by not incorporating amendments which would have “given it real teeth against illegal content”. In response to this, Peter Kraus vom Cleff, President of FEP, said, “Illegal content online is unfortunately widespread, and publishers are heavily affected by it on an everyday basis. Squarely assigning responsibility to online services and bringing the fight against illegal content to the 21st century would therefore have been essential. We regret that the Parliament has not seized this historic opportunity to allow the DSA to fulfil its ambitions. We now call the co-legislators to re-balance the text in the coming trilogues to finally bring the Digital Single Market out of the Wild West.”

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