Librarians and lawmakers fight for better access to e-books

Librarians and their legislative allies are pushing e-book publishers to lower prices and loosen licensing terms, an effort that could make it easier for millions of library users to borrow digital versions of increasingly popular books. more popular.

Proponents say e-book lending legislation in several states would allow libraries to offer more digital material and shorten waiting lists for popular titles. In the long term, the measures could strengthen the core mission of libraries in an increasingly digital environment.

“The current model is frustrating for libraries and archives whose service mission is totally different from the capitalistic goals of a for-profit enterprise,” said Kyle K. Courtney, copyright counsel at the University of Harvard and founder of Library Futures, an advocacy group. pushing for bills. “We’ve dealt with publishers and rights holders for centuries, but it’s never been worse than it is today.”

Since the early 2010s, libraries and publishers have clashed over the terms and costs of e-book licenses, which authorize libraries to lend e-books. These licenses now usually expire after a certain amount of time or after a certain number of loans. Libraries also have to pay many times the cover price of equivalent print versions.

Publishers say markups and other restrictions protect authors’ intellectual property rights and incentivize companies to invest in their work. However, as the cost of e-book licensing continues to rise, librarians and their advocates in at least nine states have pushed for legislation that would force publishers, especially the “Big Five” who produce the overwhelming majority books for the general public, to offer libraries more “reasonable” licensing terms.

State lawmakers gave bipartisan support to these bills, but several measures failed before states could implement them. New York Governor Kathy Hochul vetoed her state’s e-books bill in late December, citing copyright concerns. In June, a Maryland judge delivered a second blow to the movement, ruling that federal law preempts state attempts to regulate e-book licensing.

Undeterred, librarians and state legislators in states such as Maryland, Massachusetts and New York say they are preparing a new legislative strategy ahead of next year’s session. The new bills seek to escape the stumbling blocks that have caused legislation to fail in Maryland and New York.

Rising prices, restrictive conditions

Librarians’ latest legislative push comes after two dizzying years for digital lending. These payments (including e-books, audiobooks and digital magazines) exceeded half a billion in 2021, according to OverDrive, the largest distributor of digital library content, up 55% from two years ago. .

In response, many US libraries have rapidly expanded their digital collections and shifted their spending toward eBooks and digital audiobooks. However, libraries rarely “own” e-books. Instead, they allow the right to lend them – a model that is more like buying software than buying from a bookstore.

Under the agreement, publishers can set expiration dates on eBook licenses, limit the number of times an eBook can be borrowed, delay sales to libraries, or deny them access altogether. Today, it’s common for e-book licenses from major publishers to expire after two years or 26 checkouts, and cost between $60 and $80 per license, according to Michele Kimpton, global senior director of the nonprofit library group LYRASIS. .

In 2019 congressional testimony, the American Library Association pointed to the disparity between consumer and library e-book prices, using the 2014 bestseller All the light we can’t see for example. While consumers paid $12.99 for a digital version, the same book cost libraries about $52 for two years and nearly $520 for 20 years.

“E-books used to be on digital library shelves forever, but now you’re paying $60 for a title every two years,” Kimpton said. “It’s definitely not library-friendly, but that’s kind of where we’re at right now.”

In addition to straining limited budgets, which since the early 2000s have remained roughly flat in most places, librarians say current licensing models have drained their digital catalogs and skewed their current collections. Forced to spend more money on fewer books, librarians are inevitably focusing on bestsellers, titles by renowned authors and new installments in popular series, said Michael Blackwell, director of the county library of St. Mary’s in rural Maryland.

This does not take into account books by new and emerging authors, middle list books, and some older books whose licenses are expiring. Clients often wait weeks or months to borrow popular titles.

“We believe many people across the country are disadvantaged,” said Blackwell, who also leads the global library coalition ReadersFirst. “You shouldn’t need to have a credit card to be an informed citizen.”

“Something Must Be Understood”

Regulating e-book licensing, however, has proven difficult. Over the past two years, at least nine states, including Connecticut, Illinois, Massachusetts, Maryland, Missouri, New York, Ohio, Rhode Island and Tennessee, have considered bills that would force publishers to license e-books to libraries at “reasonable” prices. prices and terms, often leaving the word “reasonable” to future interpretation.

Last year, Maryland lawmakers voted unanimously to approve the e-book bill that would have prohibited publishers from delaying e-book sales to libraries, among other provisions. In New York state, only one of the 211 voting members of the legislature opposed the bill to establish civil penalties for publishers whose license terms unfairly restrict access to e-books.

The issue has generally been nonpartisan, said Alan Inouye, senior director of public policy and government relations at the American Library Association. On the political left, e-book licensing is a matter of fairness and equal access to knowledge; on the right, lawmakers have sometimes called expensive and restrictive licenses a misuse of public funds.

But federal law doesn’t allow states to limit the exclusive rights of copyright owners, said Sandra Aistars, director of the Arts and Entertainment Advocacy Clinic at George Mason University’s Antonin Scalia School of Law. Publishers are “completely free” to set different prices and terms for different markets, allowing them to experiment in the market and “more accurately meet consumer demand”, she said. added.

Publishers and their supporters have also argued that industry can reasonably differentiate between libraries and consumers because they buy different products. While consumers buy individual access to an e-book, libraries buy the right to distribute it to the public.

Last December in New York State, Hochul vetoed the e-book bill after intense lobbying by the arts and entertainment industries. She noted that federal copyright law gives authors exclusive control over how they share their work. That same month, the Association of American Publishers filed a lawsuit against Maryland’s e-book law on similar grounds. In June, a district court judge ruled that federal copyright law prevents Maryland from regulating e-book licensing.

“Libraries are an important part of the copyright ecosystem as authorized distributors,” said Terrence Hart, general counsel for the Association of American Publishers, in a statement. “There will be nothing to distribute if states destroy the incentives and protections for authors to license and exploit their exclusive rights to their works.”

Advocates and lawmakers in several states now say they are preparing to introduce revamped e-book bills that may withstand legal scrutiny, though federal law still preempts any state law that violates the law. copyright, Hart said. One model, developed by Library Futures, argues that states can regulate e-book terms under contract and consumer protection laws.

Massachusetts lawmakers have already worked with Library Futures to amend their e-book bill, said state Rep. Ruth Balser, a Democrat who co-sponsored an earlier version last year. The measure was not rejected by the committee, Balser said, because lawmakers first hoped to see how the Association of American Publishers trial would play out in Maryland.

Meanwhile, Maryland advocates are preparing a bill that would ban public libraries from engaging in “unfair” contracts, potentially cutting large publishers out of the state library market.

New York state lawmakers and library groups have also begun discussions about how they can “modify” the bill that Hochul vetoed, said Josh Jensen, a member of the the State Assembly, Republican co-sponsor of New York’s failed e-books bill. As a teenager, Jensen worked at a local library putting books back on the shelves.

“I was frustrated, obviously,” Jensen said of the governor’s veto. “But I think something has to be found. We’re not trying to dictate terms here, we’re just saying there have to be reasonable, good faith terms. It’s a common sense argument.”


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