An MLA Statement on "Reasonable Terms"

As noted by the Authors Alliance in a well-articulated recent blog post, libraries and state legislations have been making many efforts recently to address the issue of the availability and license terms of digital content in libraries. Their post summarizes many initiatives in one convenient place and is worth a read, especially for its take on how libraries sharing content can help authors. The post was updated yesterday with a link to new content from the Maryland Library Association (MLA), which yesterday posted a press release and a statement defining what is meant by “reasonable terms” in the Maryland legislation’s recently passed digital content bill.

I have described that legislation as “mild.” While I wish I were more articulate when talking with the members of the media and had made the point more compellingly, I’ll stand by the tenor of that description. The bill does not undermine the existing relationship between libraries and publishers. It simply wishes in part to prevent embargoes. It does not apply to all types of library—public, school, academic (in retrospect, I wish we would have used for that, as other legislation now has!). It doesn’t provide for libraries being able to make digital copies for preservation purposes. It doesn’t establish some sort of digital right of first sale and exemption from licensing for libraries, allowing digital titles to be shared as print materials are. It doesn’t put into law an official position that controlled digital lending is legal. It doesn’t begin to address the growing issue of how much content, especially video, is becoming streaming only, leaving library users out. It is, however, what we thought we could pass and provides a law guaranteeing library readers’ access to ebooks and audiobooks under terms that are “reasonable” for libraries.

So, what is “reasonable”? [Disclaimer—I helped to write the statement]. The statement went through many drafts. It sticks closely to an interpretation of what the legislators meant. It is careful about being an invitation to publishers individually to talk with library stakeholders rather than trying to set specific pricing or other license terms. We are well aware that publishers cannot engage in group dialog and must avoid even a hint of unfair pricing negotiations. It points to the long tradition of libraries, their readers, publishers, and authors all benefitting from materials being sold and circulated under copyright. Carmi Parker and I have previously covered this reasoning in an InfoToday article. In general, we think that circulating digital materials in libraries should be roughly equivalent (in overall cost and duration of titles) to circulating physical materials. If that balance between all competing rights had been fair in physical materials for hundreds of years, why is it not a good template for digital, even though digital materials might (at least under the Maryland law) continue to circulate under license and not copyright?

The good thing about the statement is that it encourages a wide range of possible models as “reasonable.” Metered access by circ (and please not by time, if possible)? Fine, give us roughly the price of physical materials. Worried about long-term costs of perpetual access? Okay, charge a higher price—but not hundreds of $$. Perpetual access and simultaneous access to a title by many, such as a classroom license? Something can be figured out, but it had better not be individual licenses at $30 per single use. A “community reads” title for a large city with unlimited simultaneous access might get thousands of downloads and be “reasonable” at thousands of $$. The key is libraries should be getting roughly the “bang per book” (hardy har—rimshot!) on average in digital that we get from physical. “How ‘reasonable’ would it be,” asks my RF Working Group colleague Carmi Parker, if a publisher “suddenly told libraries that the prices on their hardbacks were jumping from $20 to $60 and that all copies must be removed from the shelves and repurchased every 2 years?” Other than fostering access to titles and preventing embargoes, the law’s other main thrust is to encourage better terms for libraries. A return roughly equivalent to what comes from print or other physical media is “reasonable” for ebooks and digital audiobooks.

All that said, I hasten to point out that many publishers already offer terms that would be “reasonable” under the MLA statement. HarperCollins offering classics at (say) $12-14 for a 26 circ license is fair. Many medium and smaller publishers are making content available perpetually at lower prices. Some publishers are working with the Internet Archive to sell, not license, content in EPUB. Those publishers are encouraged to work with other platforms so many libraries might take advantage. There’s no question that digital has been a disrupter for publishers, authors, and libraries. We in libraries feel that in many cases—by no means all!—the delicate balance between rights holder and reader has now tilted too far away from readers. We seek access to content in ways that will be sustainable for libraries, for the benefit of our readers—and authors and publishers. The Maryland legislation is one step forward.