EXTRA It has long been the case that many of the conflicts between rights owners and online platform operators that play out as copyright disputes have as much to do with the mechanics of value capture in online markets as with any of the exclusive rights of copyright owners. There are a number of reasons for that conflation, many beyond the scope of this blog. But one big reason is that copyright law does in fact endow authors and their assignees with explicitly defined exclusive rights, the infringement of any one of which can trigger potentially ruinous statutory damages. It’s the biggest hammer in rights owners’ legal toolkit and in many ways the easiest to wield.
EXTRA A trio of artists last week filed a lawsuit in U.S. District Court in San Francisco against the developers of Stable Diffusion, Midjourney and DeviantArt, charging them with copyright infringement for scraping millions of images from the internet and using them without permission to train their artificial intelligence-based image-generating software. The complaint, which asks the court to certify it as a class action, also charges the defendants with unfair competition and violating the plaintiffs’ right of publicity under California law for advertising their AI’s ability to create works “in the style of” named artists.
EXTRA Apropos our previous post on the continued vitality of used hardcover and paperback book sales in this otherwise digital age, the folks at OverDrive are out with some data on the flip side of that story. Among the 88,000 schools and libraries worldwide for which OverDrive provides licensed access to e-books, audiobooks, magazines and other print material in digital formats, readers borrowed 555 million digital items in 2022, up a healthy 10% over 2021. The amount and scope of material in circulation also expanded, as OverDrive added 1 million titles to its digital collections from 73 new content partners.
EXTRA All of us here at the RightsTech Project wish everyone a happy and prosperous 2023.
Looking back at 2022 one of the more interesting, if unexpected, rights-related sectors to prosper during the year was used-book sales. According to the international research outfit WordsRated, sales of used books rose 5.5% over 2021, to reach $24.03 billion worldwide, or roughly 15% of total global book sales. The group further expects that growth to continue, or even accelerate, over the next decade at a compound annual rate of 6.6%, with sales reaching $45.53 billion by 2032.
EXTRA It seems our suggestion last month that heavily concentrated copyright industries may come in for heightened antitrust scrutiny in the wake of the U.S. Justice Department’s successful bid to block Penguin Random House from acquiring its Big Five publishing rival Simon & Schuster, and its emphasis on the merger’s impact on authors, may have been premature.
The U.S. Patent & Trademark Office, and the U.S. Copyright Office, this week formally solicited public comments for their joint study on matters related to intellectual property and non-fungible tokens, as requested in June by members of the Senate Judiciary Committee. Written comments are due January 9, 2023.The offices also announced a series of three public roundtables on the study to be held on January 10, 12 and 18.
EXTRA The verdict in Justice Departments lawsuit to block Big Five publishing house Penguin Random House from acquiring rival Simon & Schuster was as notable as it was unusual. It was unusual in that the case brought by DOJ against the merger cut very much against the grain of the last 30 years of antitrust jurisprudence in the U.S.
EXTRA Apropos the panel discussion we hosted at last month’s RightsTech Summit on the evolving role of podcasts and audio originals in the movie and streaming video ecosystem, here’s another interesting data point, courtesy of Edison Research’s annual spoken-word audio report, which was released this week: spoken-word audio listening is increasingly digital and mobile. According to the report, more than one-third of all spoke-word listening was done via mobile device in 2022, compared to only 25% in 2019. Another 25% was accounted for by computers, smart speakers or connected TVs. Less than 40% occurred via traditional AM/FM radio.
EXTRA Here’s an Interesting data point from CISAC’s latest Global Collections Report, released today: Music was the only repertoire among the major creative industries to show increased royalty collections in 2021. Collections in all other categories were either flat, as was TV & Radio, the biggest category overall, or down from 2020. Music’s growth, moreover, came despite the sharp drop in collections from live performances and background uses of music that began in 2020 and continued through 2021, as venues remained shuttered and people around the world remained huddled at home due to the Covid pandemic.
Download or stream a podcast today and it would not be uncommon to hear music, if only interstitially and in short segments. For the most part, however, those streams and downloads are not counted for the purposes of calculating and paying any royalties the music rights owner(s) might otherwise be due. Instead, most music used in podcasts today, where its licensed at all, is licensed on a royalty-free basis, often from stock houses or production-music catalogs, through a single, upfront payment that allows unlimited use of the music in podcast episodes for a specified period of time. As no backend royalties need to be paid, no effort is made to report back to the music rights owner how many times an episode is downloaded or streamed.