Note: Portions of this article originally appeared on the Copyright Alliance blog.
When the publishing industry began, the book’s fully analog state made it easier for publishers to track and protect copyright, as they were better able to control the content, the tools used to produce the book (design software and printing presses), and the physical shipment of the printed books themselves from the warehouse to the store and the consumer’s hands.
Today, as books appear in many forms and formats outside of the original book container, it is exceedingly difficult for publishers to track, protect, and be compensated for their copyrighted material as it travels the globe. Additionally, the last two decades have presented major advancements in the discoverability and access to book content, revolutionizing how content is consumed. The ability to track copyrighted content disproportionately affects independent publishers (which include author-publishers), because they have fewer resources, higher costs, lower margins, and less access to tools that assist in tracking and protecting their copyright.
While there remain some publishers who do not formally register their copyrights with the United States Copyright Office (USCO), most understand that this step is paramount to fully protect book content against infringement. However, filing infringement suits can be costly. The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020 created the Copyright Claims Board (CCB) to make a more inexpensive and equitable voluntary alternative to resolve infringement claims. However, any pursuit of an infringement claim through the courts or the CCB cannot occur without the content first being registered with the USCO.
IBPA’s Commitment to Copyright Laws for Publishers
Publishers are rightly concerned about copyright, as it is foundational to their livelihood, and IBPA members look to the organization for information and guidance to protect their copyrights. With the publishing landscape changing almost daily, IBPA’s Legislation & Standards Committee was formed to help give a voice to the independent publishing community in matters of copyright and proposed legislation at both the state and federal levels. For example, IBPA released a position statement on e-book legislation being considered in multiple states that would have violated copyright protections on authors’ and publishers’ work. This position statement and follow-up calls to action for IBPA members to contact their state and federal representatives when new e-book bills were proposed, were led by the IBPA Legislation & Standards Committee.
Copyright Challenges for the Publishing Industry
In our innovative world, publishers large and small need to keep an eye on how technological innovations could impact copyright and the industry as a whole. Perhaps the most notable example of a recent copyright infringement case impacting publishers was that of Hachette et al v. Internet Archive, which challenged the fair use arguments made by a nonprofit organization called Internet Archive that was scanning and digitizing whole copies of books without permission and offering them online for free. The court reached a final ruling that the use was an infringement and did not qualify for the fair use defense in 2023. Although the Internet Archive moved to appeal the decision, the original ruling was upheld in September 2024.
AI and Publishers
Today, AI is at the forefront of the creative world in publishing and beyond. HarperCollins recently became the first of the Big 5 publishers to announce a flat-fee licensing deal for select nonfiction books for AI training purposes. Cases impacting copyrights are now appearing in increasing numbers. While we know that the United States Copyright Office will not currently grant copyright to fully AI-generated works after the ruling in the Thaler v. Perlmutter case, some cases are still pending. Interestingly, an appeal is currently underway before the D.C. Circuit Court in the Thaler v. Perlmutter case, although it appears that the previous judgment will be upheld. There are also several cases being litigated in federal court where generative AI companies are making fair use arguments to justify their mass scraping and ingestion of copyrighted works without a license. Although some of these suits involve the use of non-book material in the creation of new works, publishers need to monitor these cases, as the final rulings may result in edits to U.S. copyright law on not just the copyrightability of AI-generated content in new works, but also potentially laying the foundation for standardization of licensing models between generative AI companies, creators, and publishers.
Keeping Informed Throughout 2025 and Beyond
IBPA’s Legislative & Standards Committee is working hard to stay on top of new legislation and provide information, resources, and actionable steps for our members to take as technology advances and legislation evolves in copyrights. To that end, the committee has been working with IBPA staff to create and update resource pages to help members stay informed. Watch for the first of these resource pages—on AI—to be released soon.
The publishing industry’s health depends on all publishers (large and small) working with other industry professionals to ensure that our laws are protecting books published across the entire industry. IBPA helps address these challenges through our advocacy work on the state and federal level, as well as communication and partnership with our industry colleagues. Organizations that IBPA partners with include the American Association of Publishers, the Authors Guild, and the Book Industry Study Group, as well as rights organizations such as the American Society of Composers, Authors and Publishers (ASCAP), the Academy of Motion Picture Arts and Sciences, and others who also face copyright challenges. This collaborative effort will help safeguard the copyrights that are essential to our livelihoods.
I encourage members who are interested in joining or contributing their knowledge and efforts to the Legislative & Standards Committee’s endeavors to reach out to us at ibpalegislationstandards@ibpa-online.org.
Here’s to a successful 2025!
MJ Courchesne is the owner and principal consultant of Gryphon Publishing Consulting. She has over 25 years of experience in trade, academic, and direct-response publishing, and specializes in licensing, subsidiary rights, and permissions.