As posted elsewhere, ReadersFirst is requesting libraries to consider adapting the Rhode Island Library Association and Ocean Sate Libraries’ response to the Congressional Research Service to send their own congressional representatives for consideration. RF has, however, penned a response of its own to consider some of the further ramifications of the CRS report. For those possibly looking for a deep dive (if there are any such people), here it is:
On April 28th, the Congressional Research Service (CRS), a “nonpartisan shared staff to congressional committees and Members of Congress [operating] solely at the behest of and under the direction of Congress,” released a “Legal Sidebar, COVID-19 and Libraries: E-Books and Intellectual Property Issues. It “explains how copyright law governs e-book lending; describes how the COVID-19 pandemic has affected e-book accessibility; and outlines some possible legal approaches Congress may consider.” While we, a group of librarians, library or library consortium administrators, and employees of the American Library Association, appreciate and encourage Congressional attention to the issue of library access to ebooks and agree with many points in the Sidebar, we find it somewhat biasedslanted. to the publishers and suggest that it ignores the perspectives of librarians, some authors, and readers. There are publisher perspectives in the report. Where are the perspectives from libraries, authors, physical and digital distributors, and readers? We offer the following comments in hopes of better informing Congress and the public about the difficulties libraries face providing ebooks, and not only in a time of pandemic.
General Reflections
Libraries don’t seek to put publishers out of business. Libraries want to be treated fairly and want to see all players in the industry succeed. All are, or should be, partners in a time when reading as a pastime and source of information is under challenge by often less reliable sources of information. What is not represented at all in the CRS report is the role of libraries in marketing new authors and books to readers. Libraries are part of the economic engine of the publishing industry, fostering discovery of titles and ultimately generating patron purchase of titles.
While the issue of library readers’ access to ebooks is exacerbated by COVID-19, this issue is not new and has been in discussion by the industry for a decade. The Big 5 publishers (then Big 6) at first did not allow libraries to license their publications at all. Later, at least one initially allowed but then prohibited access. In spite of careful Digital Rights Management (RDRM) being in place in library-provided ebooks, preventing piracy, and severe limits on patron borrowing under licensing, the big publishers have been cautious at best and in some cases recalcitrant about providing digital access for library readers.
Mention is made in the Sidebar in several places of library ebooks as “frictionless” or “free of barriers.” This has been one publisher claim for years; indeed, in those places, the Sidebar appears sounds like an interview with Macmillan CEO John Sargent rather than a balanced and fact-based review of the situation. The premise of this argument is flawed, the argument itself a canard. In fact, publisher licensing restrictions and pricing combine to prevent easy access to many titles, while even the better designed commercial library digital content vendors’ interfaces can be confusing and require librarian assistance for many patrons to use. An argument can be made that there is more friction with library ebooks than there is with print books.
An important note that is missing here is the role of libraries in equity of access, especially for those who are underserved and the wrong side of the digital divide. Reading is a right; people should not have to break out credit cards to become informed participants in our democracy.
Another factor that is missing from this analysis is the impact of “monopolies,” and their negative influence on all players in the industry. The elephant in the room is Amazon.com, which currently does not allow any library reader access to its “exclusive” content. Last week one of us had to tell 3 patrons that the ebooks they wanted could not be ordered because they were Amazon exclusives and not available to libraries.
But let us look at the CRS report section by section
“Legal Background”
This section fails to address the original premise of copyright law: “The primary purpose of copyright law is not so much to protect the interests of the authors/creators, but rather to promote the progress of science and the useful arts—that is—knowledge.” (https://lib.siu.edu/copyright/module-01/purpose-of-copyright-law.php ) We argue that current licensing restrictions privilege creators/publishers at the expense of readers and so inhibit the sharing of knowledge.
“Libraries and the First Sale Doctrine”
The report makes this claim, which is erroneous in many ways and very much open to dispute: “Even so, the physical impediments to checking out a book from a library (e.g., library membership, traveling to the library, physical limitations on the number of copies) maintained incentives for consumers to buy physical copies from publishers, and there was little risk of piracy through physical copying. The development of ebooks, however, arguably shifted this balance.” Let’s us look at the various “frictions” library ebooks have when compared to print:
Friction: one-copy-one-user - same as print
Friction: preventing piracy--copying by breaking DRM is HARDER than with a photocopier, which can be used by a child. More pirating occurs with print copying of chapters or even entire books and subsequent sharing online via .PDF, with physical books now far easier to pirate than DRM protected library e-books.
Friction: “traveling to the library” -- it is true that patrons can access ebooks without visiting the library, but that ease is offset by the technical challenges faced by many users:
Lack of skill to use ebook apps--many, especially seniors, must go to the library to have their devices set up and to learn how to get ebooks from the library. Libraries do thousands and thousands of such teaching transactions every year.
Lack of technology, especially among the less economically fortunate, especially in a time of lay-offs and unemployment..
Lack of reliable Internet access, especially in more rural areas..
What has actually shifted with ebooks is not the balance between publishers and libraries (except to give publishers more power and to weaken libraries) is as follows:
Consumer preferences/demand.
A lack of ownership and restrictive licenses that impede use and that exacerbate the digital divide:
No interlibrary loan
No book sales / used book donations
The library’s ability to build lasting, varied, and deep collections to equal our print holdings even as digital resources become increasingly important--a problem especially felt during the current pandemic.
“Libraries and Ebooks”
The report makes the following claim but ignores the perspective of the reading public: “From the publishers’ perspective, this difference in treatment is justified because e-books seemingly present a greater threat to retail sales than physical books. Unlike physical books, library patrons can check out, download, and read e-books on their smartphones from their home. Accordingly, whereas there are numerous barriers to checking out a physical book from a library, there are nearly no barriers to checking out, reading, and returning an e-book, beyond having access to the requisite technology (e.g., a compatible device, the correct app).”
And where is the libraries’ perspective on this? As pointed out above, “friction” and barriers to library ebooks are in fact real. What is this threat to retail sales? No publisher has released information when making this claim. Let’s see the numbers, please! The report mentions “Beyond having access to the requisite technology” as if that were a snap of the fingers to fix. No mention is made of broadband access, as if that alone is not a barrier for many in rural areas or even in more disadvantaged urban areas.
The report says “Certain publishers have experimented with more restrictive policies. For example, in November 2019 Macmillan implemented a policy where it would not license e-books to libraries during the first eight weeks after a title’s release. Macmillan explained that those early weeks were key for profits and that libraries were ‘cannibalizing sales.’ This led to many libraries boycotting Macmillan purchases entirely. Macmillan eventually ended this policy in March 2020.” Again, the report gives a publisher perspective without discussing the library perspective. It is certainly appropriate to include perspectives from the industry, but here again this document only references publishers, not libraries, authors, distributors, and readers.
It should be pointed out that libraries individually and library groups such as ALA, ULC, CULC, and COSLA tried engaging with Macmillan to find mutually acceptable solutions only to be ignored or stiff-armed. The ALA set up the #EBooksForAll campaign to engage readers, not to attack publisher sales, but this less confrontational approach gets no mention. We are willing to view publishers as partners but Macmillan’s effort to limit public access to information, even if libraries were willing to pay for access, should be anathema in a democratic society.
“Ebook Lending During COVID-19”
Our group makes no comment about the legality of the Internet Archive’s “National Emergency Library” (which is different than its Open Library, a service that rests fairly and appropriately on Controlled Digital Lending) other than to say that looking only at this one instance of library ebook use ignores the experience and valid concerns most public libraries in the crisis: in a time when demand is exploding, in many cases up 50% and more than the months before the crisis, publisher pricing and licensing still greatly reduce access and make it difficult to perform their democratic mission in a time when the public even more needs valid and legitimate information to oppose the inaccuracies and false claims that may so readily be found on social media and other manifestations of the Web. Library users wish to participate in real-time conversations surrounding current events, not wait 12 months when the "current event" is over and their place on the long waiting lists on many popular library ebooks titles might finally be reached.
“Implications for Congress”
The CRS report presents three options for Congressional Action. Of these three, the third option (“provide limited copyright immunity for library e-book lending, while stopping short of a full digital first sale doctrine”) seems problematic for two reasons. First, we believe that as long as libraries do not create “extra” copies of materials, existing copyright already allows some digital lending practices. By digitizing a book, circulating it one user at a time, and withdrawing the print copy into an archive from which it does not circulate, libraries already have this ability. It is the foundation of controlled digital lending (CDL). Libraries that have tried CDL have generally been responsible, willing to respect “take down” requests and not giving access to more current titles or even titles with existing publisher licenses. Boston Public Library has even worked with publishers, including Little Brown and MIT, to expand access to older offerings in this way. If, however, Congress would like to enact legislation specifically enshrining CDL and even library ebook copyright immunity, perhaps limiting immunity to works at least 2 years old (when many titles are out-of-print or at least demand anyway), we would certainly approve. There is a second problem with this option, however, namely that “Congress could render any legal changes temporary by, for example, having them expire on a particular date or when the current national emergency ends.” A permanent solution to the publisher rights/library access issue is needed, not one that settles the matter only during the pandemic. And even if the library immunity was extended only to licensing and redistributing ebooks, issues of price and availability would still remain, which brings us to the second option discussed in the report.
The second option (“amend the copyright laws to introduce a digital version of the first sale doctrine”) would be a permanent solution. We suspect that if purchasing an ebook gave us the “right to re-sell or otherwise distribute that e-book,” publishers would immediately raise ebook prices, a fact which begs several questions. Would publishers still be able to set one price for libraries while reserving another and far lesser cost for individuals? If so, would some sort of fair pricing need to be legislated--for example, libraries could not be charged more than 5 times the consumer price (relying on what consumers will pay to determine fair value)? What about entities such as Amazon, which sell to individuals but not to libraries--would this discrimination still be allowed? We agree it is time for Congress to “now reexamine the market and determine whether it has matured sufficiently and in a manner that would warrant further action,” considering all the ramifications and with the original intent of copyright in mind to ”promote the progress of science and the useful arts—that is—knowledge.” We wonder, however, if the publishers would agree, thus bringing us to Option 1.
Option 1 (“maintain the legal status quo. When publishers introduce new restrictions, libraries often push back”) has the seeming advantage of encouraging a fair market. What we argue, however, is precisely that the status quo is unfair. Publishers need only raise their prices for us and tell libraries to purchase or not at these high prices. The only option we have is not to buy and call public attention to unfair practices. This option does not get ebooks onto the devices of readers hungry for content, especially those in straitened financial circumstances. Licenses still remain unfair: most of the Big 5 offer only two-year licenses on ebooks, meaning we must constantly renew our collections and can never be certain of maintaining access to titles. A title that is $60 for 2 years will be $240 for 8 years--and we could only afford it by ignoring other titles. Time and again we have asked for a return to the perpetual license option from the Big 5 (even at a higher cost), and offered to develop alternative models (subscription or pay-per-use) at prices that would allow us access, only to be met by the Big 5 ignoring us and moving in concert to set similar restrictive licenses and nearly identical pricing to each other. Does this practice resemble the “agency pricing” that brought a judgement against the publishers and Apple in 2012? We fall back upon medium and smaller publishers and even indie content, to provide titles for our readers. We are not, however, treated as partners in reading by a group that controls some 90 to 95% of all best selling titles. Library readers deserve better access. Some legislative action is needed to create an “equilibrium whereby libraries are able to lend e-books to fulfill their mission (albeit not as easily as they might like) and publishers and authors are able to profit (albeit not as much as they might like).” Without that action, if only mandating that we be able to have perpetual licenses so that we don’t have to renew every two years, equilibrium will never be reached.
