LAST month, the Supreme Court decided to allow the importation and resale of foreign editions of American works, which are often cheaper than domestic editions. Until now, courts have forbidden such activity as a violation of copyright. Not only does this ruling open the gates to a surge in cheap imports, but since they will be sold in a secondary market, authors won’t get royalties.
This may sound like a minor problem; authors already contend with an enormous domestic market for secondhand books. But it is the latest example of how the global electronic marketplace is rapidly depleting authors’ income streams. It seems almost every player — publishers, search engines, libraries, pirates and even some scholars — is vying for position at authors’ expense.
Authors practice one of the few professions directly protected in the Constitution, which instructs Congress “to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The idea is that a diverse literary culture, created by authors whose livelihoods, and thus independence, can’t be threatened, is essential to democracy.
That culture is now at risk. The value of copyrights is being quickly depreciated, a crisis that hits hardest not best-selling authors like me, who have benefited from most of the recent changes in bookselling, but new and so-called midlist writers.
Take e-books. They are much less expensive for publishers to produce: there are no printing, warehousing or transportation costs, and unlike physical books, there is no risk that the retailer will return the book for full credit.
But instead of using the savings to be more generous to authors, the six major publishing houses — five of which were sued last year by the Justice Department’s Antitrust Division for fixing e-book prices — all rigidly insist on clauses limiting e-book royalties to 25 percent of net receipts. That is roughly half of a traditional hardcover royalty.
Best-selling authors have the market power to negotiate a higher implicit e-book royalty in our advances, even if our publishers won’t admit it. But writers whose works sell less robustly find their earnings declining because of the new rate, a process that will accelerate as the market pivots more toward digital.
And there are many e-books on which authors and publishers, big and small, earn nothing at all. Numerous pirate sites, supported by advertising or subscription fees, have grown up offshore, offering new and old e-books free.
The pirates would be a limited menace were it not for search engines that point users to these rogue sites with no fear of legal consequence, thanks to a provision inserted into the 1998 copyright laws. A search for “Scott Turow free e-books” brought up 10 pirate sites out of the first 10 results on Yahoo, 8 of 8 on Bing and 6 of 10 on Google, with paid ads decorating the margins of all three pages.
If I stood on a corner telling people who asked where they could buy stolen goods and collected a small fee for it, I’d be on my way to jail. And yet even while search engines sail under mottos like “Don’t be evil,” they do the same thing.
Google is also at odds with many writers because in 2004 it partnered with five major libraries to scan and digitize millions of in-copyright books, without permission from authors. The Authors Guild (of which I am president) sued; years later, with a proposed settlement scuttled by the judge, the litigation goes on.
Google says this is a “fair use” of the works, an exception to copyright, because it shows only snippets of the books in response to each search. Of course, over the course of thousands of searches, Google is using the whole book and selling ads each time, while sharing none of the revenue with the author or publisher.
It got worse in 2011, when a consortium of some of Google’s partner libraries, the Hathi Trust, decided to put online some 200 books that the group had unilaterally decided were “orphans,” meaning they couldn’t locate the copyright owners. The “orphans” turned out to include books from writers like the best-selling novelist J. R. Salamanca — alive and well in Maryland — and the Pulitzer Prize winner James Gould Cozzens, whose copyrights were left to Harvard. The Authors Guild sued, and Hathi suspended the program. But that litigation also continues, even while millions of copyrighted works are stored online, one hacker away from worldwide dissemination for free.
Via Marilyn Armstrong