By Danielle Bouwman
Northeastern University • Friday, April 1, 2016
As the Digital Age and its subsequent digital content become commonplace and second nature in our society, the ethics, laws, and policies regarding intellectual property and accessibility are once again pushed to the forefront of public debate. Much like the entertainment industry, the publishing world is now finding itself in a similar position trying to determine who has the right to access and share digital content, or more specifically, e-books. Perhaps one of the most heated debates surrounding this issue is between public libraries, publishing companies, and authors concerning how libraries can offer this content to their patrons. Put simply, libraries are actively fighting for the right to lend e-books, keeping the flow of information to the public open. Publishing companies, on the other hand, are concerned with the licensing agreements involved and the possibilities of illegal sharing and copyright infringement.
In the words of R. David Lankes, “Bad libraries build collections, good libraries build services, great libraries build communities.” This ideal is essentially what libraries are fighting for in the pursuit of access to more digital content. In order to help foster their communities, libraries must be able to provide information on “education and employment to entrepreneurship, community engagement, and individual empowerment” (Inouye & Oehlke, 2015). If libraries don’t move forward with the digital trends of society, they will fall behind and be unable to serve their communities. Most actively involved on their side is the American Library Association (ALA) who is “engaged in outreach to the publishing community to advocate for improved library access to e-books” (Inouye & Oehlke, 2015). Within the ALA is a group specifically dedicated to this cause called the Digital Content Working Group (DCWG). The DCWG is proactive in their approach by “not waiting for publishers and others to act but [by] initiating [their] own action on behalf of the library community” (Inouye & Oehlke, 2015).
Unlike printed material that libraries can purchase, own, and lend, digital content must be licensed through contracts with the rights holders (e.g., major publishers, independent publishers, self-publishing authors, etc.). Libraries are typically prohibited from archiving this material or re-selling their stock of e-books like they can with printed material. This restriction was enforced after the case of Vernor v. Autodesk in 2008, where the court ruled that the “you bought it, you own it” principle is limited in terms of e-books. E-books are now treated more like software where the publishers can restrict use however they feel fit. Additionally, libraries often have to spend 150 to 500% more than the consumer price of e-books, which causes them to purchase or license fewer copies, according to the ALA (2016). Additionally, many librarians feel that “if publishers or content sellers of e-books dictate use restrictions through DRM, (Digital Rights Management) [it] is completely against the spirit of libraries and the ethics of librarians” (Colomb, Rosch, & Vallotton Preisig, 2012) in that it severely limits the depth of their collections.
Ethically, libraries are concerned with the public’s right to the access of information. “America’s libraries have always provided unfettered, no-fee access to reading materials (no matter the format), which fosters educational opportunity for all. To deny library patrons access to e-books that are available to consumers—and which libraries are eager to purchase or license on their behalf—is discriminatory” (American Library Association, 2016b).
The opposing stakeholder in this debate is the publishing industry, most notably the Big Six (now five with the Random House/Penguin merger) publishing houses. They have several concerns about how to move forward with their relationship with libraries in the Digital Age. One concern is that the publishers and rights holders will lose money by letting libraries buy e-books outright instead of licensing them. This issue arises out of the fact that libraries have to buy new copies of print books as they begin to wear out (Budler, Reidy, & LeRue, 2013). E-books, on the other hand, never wear out and would not need to be repurchased. Another of their concerns is that libraries will begin to share their e-books with other libraries, essentially creating one large database of e-books for free (Budler, et al., 2013). This is yet another instance where the rights holders lose money. If the public can access all of this material for free, in some cases illegally, why would they purchase a copy?
As mentioned above, the core of the publishers’ concern lies in the protection of intellectual copyrights and illegal copying and sharing. In 2008, Cambridge Press filed a lawsuit against Georgia State University (GSU) over their electronic course reserves that made portions of textbooks available online to students. They claimed that by making this material available, the university was committing copyright infringement. The district court ruled against them, however, and found that what the university was doing constituted as fair use in most cases (Peet, 2014). Following the lawsuit, GSU “changed its e-reserve policy and adopted a fair use checklist to help faculty make decisions as to how much copyrighted material they could use as part of their e-reserves” (Peet, 2014). It is cases like this that have publishers worried about their relationships with libraries and the future of e-book licensing. Some publishing houses even enacted an embargo policy against library access to e-books.
The final stakeholder in this debate are the authors themselves. While many of them may or may not have a choice due to contracts with their publishers, there is an Authors Stand with Libraries movement. Their support of e-books in libraries comes from several benefits authors and their works get from the easy accessibility. Some of these benefits include more widespread exposure, increased sales, the respect of the libraries themselves, as well as the amplified love of reading among library patrons (American Library Association, 2016a). Jeannette Woodward, author of several titles, has the opinion that “publishers need to be educated about the real world of libraries and understand that libraries can actually help their bottom line” (American Library Association , 2014). Despite this group, however, there are also authors who side with the publishers’ point of view on this issue. Regardless of the side authors fall on, none of them are too keen on the idea of having their works pirated (Howard, 2011) or leaked early in cases of highly-anticipated sequels.
The publishers and libraries came to a sort of truce in 2013 because by the end of that year, all the major publishers agreed to participate in the library e-book market to varying degrees. Some participated in pilot programs with selected libraries that offered the option for patrons to purchase the titles if there was a long wait. Many of these pilot programs involve the use of OverDrive, a Cloud service that gives patrons access to digital content provided by the library with their library card. Additionally, applications like Hoopla connect with local libraries to provide patrons access with their library card on their smartphones and tablets. Hoopla then limits each patron to 10 digital rentals in a given period. Finally, the publisher that had set an embargo policy ended it and started allowing libraries access to their titles (American Library Association , 2014).
Another step forward came in June 2013 when the World Intellectual Property Organization “finalized the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled. This creates a copyright exception and allows nations to share or make accessible copies in other countries for the print-disabled, who more often than not have little access to reading materials” (American Library Association , 2014). This ruling goes a long way in satisfying the libraries’ concerns of the restriction of access to e-books for those with disabilities, as they cannot make copies for them.
While these are all steps headed in the right direction, the overall problem has not been fully solved. Libraries are still being charged enormous amounts of money for a single title, and publishers are still wary over their perceived losses in sales. In order to find a true solution, libraries and publishers need to stop treating each other as the enemy. Open communication about the values, processes, and goals libraries have for digital content may help publishers see where they are coming from. Educating publishers on the actualities of content circulation could also go a long way in helping to ease their concerns. For example, publishers may “imagine that library books circulate 50 or more times, causing them to lose 49 sales. This attitude, of course, ignores the many books that circulate rarely and assumes that library readers would purchase every book they borrow” (American Library Association , 2014).
Libraries also need to have a more open mind about licensing. In a presentation to the International Federation of Library Associations and Institutions (IFLA) in 2012, the Civic Agenda concluded the following from Colomb et al.:
The licensing model does not necessarily or intrinsically undermine the role of libraries in as providers of public access to digital content. Indeed, if implemented appropriately, it could potentially provide a welcome flexibility and diversity in the options and pricing structures available to libraries. In a context where negotiable access to all digital content and titles is enforced, libraries need not necessarily secure enduring rights/ownership of that content.
In my opinion, the solution lies in the full disclosure and balance of the goals of both sides. Print books may be the forerunner of the publishing world now, but the percentage of people who read e-books will continue to grow with the increasing possession of smart phones and tablets. If libraries and publishers don’t work together, they will both be left behind and suffer many of the consequences that entertainment industry is still trying to recover from. I will always prefer print over digital in terms of my personal reading material, but I cannot discount the ease and convenience of applications like Hoopla and OverDrive.
Libraries are an important institution in our society, and they deserve a chance to continue to grow and serve their communities in the Digital Age, just like any other organization. To let them crumble would be a detriment to our culture. To emphasize my point, this quote by author Libba Bray seems especially appropriate:
The library card is a passport to wonders and miracles, glimpses into other lives, religions, experiences, the hopes and dreams and strivings of ALL human beings, and it is this passport that opens our eyes and hearts to the world beyond our front doors, that is one of our best hopes against tyranny, xenophobia, hopelessness, despair, anarchy, and ignorance.
American Library Association . (2014). Digital reading makes gains, but books are holding their own. Retrieved March 31, 2016, from http://www.ala.org/news/state-americas-libraries-report-2014/e-books
American Library Association. (2016). Authors for library ebooks. Retrieved March 30, 2016, from Authors for Library Ebooks: http://www.ala.org/transforminglibraries/a4le
American Library Association. (2016). Frequently asked questions regarding e-books and U.S. libraries. Retrieved March 30, 2016, from Libraries Transform: http://www.ala.org/transforminglibraries/frequently-asked-questions-e-books-us-libraries
Budler, J., Reidy, C., & LeRue, J. (2013, August 5). E-books strain relations between libraries, publishing houses. (L. Neary, Interviewer)
Colomb, P., Rosch, H., & Vallotton Preisig, A. (2012). Libraries, e-Lending and the Future of Public Access to Digital Content. Retrieved March 31, 2016, from IFLA: http://www.ifla.org/publications/libraries-e-lending-and-the-future-of-public-access-to-digital-content
Howard, J. (2011, June 5). Publishers grapple with thorny issues of protecting property and going digital. Retrieved March 31, 2016, from The Chronicle of Higher Education : http://chronicle.com/article/Publishers-Grapple-With-Thorny/127773/
Inouye, A. S., & Oehlke, V. (2015, June 2013). A policy revolution for digital content: engaging decision makers and influencers. Retrieved March 30, 2016, from American Libraries Magazine: http://americanlibrariesmagazine.org/2015/06/23/a-policy-revolution-for-digital-content/
Peet, L. (2014, October 20). Court Reverses Ruling on Publishers vs. Georgia State E-Reserve Case. Retrieved March 31, 2016, from Library Journal : http://lj.libraryjournal.com/2014/10/legislation/court-reverses-ruling-on-publishers-vs-georgia-state-e-reserve-case/#_