For over ten years, eBooks have been transforming our reading landscape. Readers can carry a whole library on a single device, or customize the typeface for their vision, or just experience literature in a format that works best for them.
We are proud to offer access to eBooks at Denver Public Library, but recent developments have thrown a wrench in that access. During Summer 2019, the publisher Macmillan announced that they will be imposing an embargo on libraries purchasing eBooks. Namely, libraries of any size can only purchase one copy of an eBook for eight weeks after its publication. Stacey has written a blog post on the embargo and American Library Association's #eBooksForAll campaign.
But why is this an issue in the first place? Here is a crash course in what's happening behind the scenes in the world of eBooks that has led to some of the current animosity between libraries and our vendors.
The First Sale Doctrine
Let's back up a bit to the world that existed before eBooks. How do libraries have the right to essentially distribute a bunch of copyrighted works in print, on DVD, and on CD for free, temporary use by almost anyone? (And how did Blockbuster capitalize on that exact same model for almost 20 years?). The answer is something called the First Sale Doctrine of US Copyright law, which a NOLO article written by an attorney summarizes as follows:
Every day, millions of consumers make use of the first sale doctrine. This copyright doctrine permits the purchaser of a legal copy of a copyrighted work to treat that copy in any way he or she desires, as long as the copyright owner’s exclusive copyright rights are not infringed. This means the copy can be destroyed, sold, given away, or rented.
So once you buy a book, the limits on what you can do with it apply to the text (which is the author's copyrighted work), but you can do what you want with the book itself, since selling, donating, or destroying that single, paid-for bundle of wood pulp creates no additional copies of the copyrighted text. This is how libraries across the country are able to purchase dozens of copies of a title to fulfill the requests for hundreds of readers without triggering lawsuits. There are single books in our collection that see hundreds of checkouts in their lifetime at DPL.
Thanks to the First Sale Doctrine, authors get money from library purchases (plus promotion, speaking opportunities, etc.), cardholders get to expand their minds without having to pay for each individual book that interests them, and libraries get used, which justifies our existence when we propose a budget that in part will be spent on buying more books.
Digital Rights Management, a.k.a. DRM
Even though libraries still move a lot of print books, we're living in the future now and that means eBooks are part of our information landscape. With eBooks, questions of copyright and control get infinitely more complicated. For starters, the First Sale Doctrine does not apply to eBooks, whether an individual consumer or a library holds the purse strings.
Let's leave libraries out of it for a moment. When a consumer pays money in order to access an eBook, that consumer is not buying that eBook. That transaction is more accurately described as paying for a license to access the book. The consumer never owns the eBook and the seller ultimately retains control of it, even when the consumer downloads it to their device.
A prime illustration of this distinction between ownership and licensing occurred earlier this year, when Microsoft shut down eBook sales in Microsoft Store. Microsoft removed the eBooks from their customers' devices. The company did refund customer money and paid up to $25 extra as a good-will gesture to readers who had annotated their revoked titles. Even with the refund, many customers were angry that they had lost access to the content, which was the impetus behind their purchases in the first place. In order to access eBooks, customers would have had to have endorsed a terms-of-use agreement that explained Microsoft's right to remove access in the fine print. People check these boxes all the time without reading or understanding them.
The reason why payment for access does not equal digital ownership largely has to do with something called Digital Rights Management, or DRM, which Dingledy and Matamoros have defined as "technology that controls access to content on digital devices" (1). DRM is neither the same as, nor a substitute for copyright, but it is a factor in a lot of copyright discussion. DRM is put in place to protect copyright holders in the digital age. It is very easy to duplicate and distribute infinite perfect, digital copies of a copyrighted work. On the one hand, authors, studios, companies, etc., argue that DRM is designed to protect copyright holders from infringement and piracy. Others argue that DRM gives too much power to copyright owners and not enough to individuals who want to enjoy the works legally.
This is barely scratching the surface of all the issues at work when it comes to copyright, DRM, and the information landscape. (Seriously, Dingledy and Matamoros wrote a twenty-seven-page chapter in an entire book on this subject aimed only at librarians.) Access codes for software purchases, paywalls on academic papers, limited monthly numbers of free news articles, and putting in your library card number and PIN to access a database are a few of the myriad examples of DRM at work that many of us experience every day.
Libraries and eBooks
In the library environment, where one purchasing entity is trying to loan a large volume of eBooks, we have a related-but-distinct kettle of fish. As a librarian who works with our customers face-to-face, online, and over the phone, my experience has led me to understand that there are some truths about eBook lending that surprise our cardholders. These are the results of DRM issues colliding with the library model of lending titles to facilitate access to information:
- Yes, eBooks have holds lists. This one surprises people because it seems like it would be easy to just distribute a bunch of digital copies of a work. After all, eBooks don't have the printing costs that regular books do; creating enough copies seems like it would be instantaneous. But as we just learned, this is precisely what DRM is designed to prevent. Libraries must pay to license each copy of an eBook title individually, just as consumers do.
- Libraries pay above retail prices for eBook access. Furthermore, libraries actually pay three-to-five times more than retail price for eBook access. If an individual is charged $15 for an eBook license, a library often pays $50 or even $84 for one license. As far as libraries go, DPL has a pretty big budget but it's not an infinite budget. We have to spend that budget on a number of different formats to reach our diverse body of readers. These price increases cut into our ability to buy scads of copies.
- Libraries do not have permanent access to eBooks. When a consumer licenses an eBook, they retain that access long-term (unless the seller revokes the title). By contrast, library licenses are now often limited, either by time (often a two-year period) or number of checkouts or whichever comes first, depending on the publisher. In 2018, Penguin Random House changed its purchasing model to force libraries to re-purchase titles biannually, and earlier in 2019 Hachette Book Group and Simon and Schuster changed theirs as well. This means libraries must pay those exorbitant prices for the same content from four out of the five biggest book publishers in the US over and over again.
- Libraries cannot lend eBooks to other libraries. Libraries have limited budgets, limited space, and are unable to buy books that are out of print. In response to these shortcomings, libraries often band together to lend materials, as DPL and other Colorado libraries do with Prospector and MOBIUS. The strict agreements with publishers mean that we cannot lend each other digital materials, meaning those high, repeated costs for access continually fall back on each individual library system.
Why are these agreements so restrictive? Publishers have argued that library lending negatively impacts sales. Library advocates have argued that libraries serve to increase book sales. Specifically in response to the Macmillan embargo, Steve Potash, the CEO of Overdrive (one of the eBook-lending juggernauts), has argued that Macmillan's claims about libraries impacting sales is false and unsupported by data.
What does this mean for libraries and digital content in the future?
Macmillan's embargo is not an isolated incident for libraries, or even public libraries, or even eBooks. We are joining libraries around the country in dropping our subscription to Lynda Library over privacy issues. This past winter, the University of California system ended negotiations with Elsevier, a huge scholarly journal publisher, over issues of cost and access. Amazon is a huge publisher of eBooks that frequently refuses to sell some of its exclusive products to libraries. This past summer, New York, Brooklyn, and Queens public libraries all dropped Kanopy due to its pay-per-use model (which is why we and other Denver Metro libraries limit the service to our respective home county residents only). I mentioned Penguin Random House and Hachette Book Group changing their pricing models earlier; and believe it or not this was not Macmillan's first voyage on the stormy seas of eBook embargoes.
I don't know what the future holds, but at the moment it looks like libraries are at a crossroads with publishers and platforms. Public libraries, which are public services, buy things from publishers, which are for-profit companies. In the past, we were able to forge partnerships that served both parties but we seem to be in a moment of unprecedented animosity with library vendors. Last week, the American Library Association reached out to Congress over the digital marketplace practices that prevent libraries from providing access to our cardholders to downloadable and streaming content.
One reason why people trust libraries as institutions is that we make things seem easy. Anyone seeking a book or an answer to a question can phone, email, chat, or talk to a person who is professionally trained in research without a paying a fee. That is because libraries as institutions are committed to protecting your right to freely access and explore ideas. We believe that democracy runs best with an informed citizenry at the helm, and these barriers to access impede our ability to support our community of resources.
If you're ready to take action, you can add your name to the chorus of voices fighting for eBook access at the #eBooksForAll website. You can also tell your friends, family, and fellow library users what you've learned about these issues.
Confused? You're not alone. These issues are not easy to understand and continue to get more complicated as they unfold. If you've got a question about this or anything else, Ask Us! We're here for you.
"ALA Responds to Macmillan Letter" in American Libraries (10/31/2019)
American Library Association's Report on Competition in Digital Markets (10/24/2019)
American Library Association's LibGuide on the First-Sale Doctrine.
"How Libraries Help Authors Boost Book Sales" by Rachel Kramer Bussel. (Forbes, 4/12/2019).
"What is Digital Rights Management?" by Frederick W. Dingledy and Alex Berrio Matamoros. (Digital Rights Management: The Librarian's Guide, edited by Catherine A. Lemmer and Carla P. Wale, 2016).
"Last Sale? Libraries' Rights in the Digital Age" by Jennifer Jenkins (College & Research Libraries News, Vol. 75, No. 2, 2/2014).
"When You Buy Digital Content on Amazon or iTunes, You Don't Exactly Own It" by David Lazarus (LA Times, 5/3/2016).
"Why Angry Librarians Are Going to War With Publishers Over E-Books" by Heather Schwedel (Slate, 9/11/2019).
Great information and explanation on the current issue around Ebooks and current embargoes being place on access.
Thanks for the insightful, easy to understand outline of the situation with ebooks. Please keep us posted.
This is excellent, detailed information--thanks for posting. I shared the link on my Facebook page so others can read it too.