The skirmish between public libraries and trade book publishers over e-books has heated up recently after having moved toward détente over the last few years. From the look of it, it’s not going to end anytime soon, and it may well get worse before it eventually gets resolved.
The standoff concerns libraries’ rights to “lend” e-books to their patrons, which most of them do through e-lending platforms such as OverDrive. The digital rights management schemes these platforms use—essentially the same ones e-book retailers use—cause the e-books to “disappear” at the end of a lending period. This gives patrons access to books without even having to visit a physical branch. It’s one of the great innovations that digital technology has made possible for libraries.
But libraries can only do this to the extent that publishers allow. Libraries can buy print books just as consumers do, and the law gives them the right to lend them on whatever terms they want. Not so with e-books; digital files carry no such rights. As a result, libraries have to accept whatever terms, if any, publishers choose to license them for e-lending. These terms have varied over the years and have at times included limits on the number of “loans” per title, license fees that greatly exceed consumer retail prices, and, in the latest twist, embargoes on e-lending of newly published titles.
Macmillan’s new embargo on e-lending of new titles—allowing libraries to license only a single copy each for the first eight weeks of publication—is a retrenchment from licensing terms that had been liberalized over the past few years. The embargo has caused the loudest protests from libraries since HarperCollins implemented limits on e-loans per title back in 2011. Currently, a growing number of libraries and library consortia serving areas totaling more than 15% of the population of the U.S. are boycotting Macmillan e-book titles, though none appear to be boycotting the publisher’s titles in print.
There are two major problems here. First is the law. The library legal authorities I’ve spoken with generally agree that pushing Congress for changes in the copyright law is unlikely to work, though a few believe that getting a court to recognize e-lending as fair use might be worth a try—if someone can fund the multiyear litigation campaign that would be necessary. The American Library Association is now pursuing antitrust law as a venue for legal intervention: it recently sent a letter to the House Judiciary Committee linking the behavior of major trade publishers (including Amazon) and Congress’s inquiry into possible anticompetitive behavior among the big tech companies.
The second problem is that publishers and libraries are really having two different conversations here. Libraries tout their missions to serve their communities, promote literacy, and make books available to those who can’t afford to buy them. The major publishers, on the other hand, treat libraries as sources of revenue. Meanwhile, Amazon has been competing directly with public libraries through offerings such as the Kindle Owners Lending Library.
Barring some form of legal intervention, the only way forward is for libraries to negotiate with publishers purely on business terms and based on real data. Though this type of conversation does not come naturally to most librarians, it is not a new idea; it was suggested by the great library authority Robert Darnton 10 years ago in his book The Case for Books: Past, Present, and Future—and it’s also the focus of a current initiative called the Panorama Project.
The Panorama Project was started just over a year ago by OverDrive as a forum for aggregating data from libraries and publishers to promote mutual understanding of the impact of public library lending on book sales. It has been gathering data and conducting research projects, and it has an advisory board with members from both the library and publishing communities.
The Panorama Project has made some progress, though it’s looking more and more like a unilateral effort by libraries to educate publishers on libraries’ measurable impact on retail sales. Only one of the Big Five trade publishers, Penguin Random House, is represented on the advisory board. Antitrust concerns have led the project to restrict the kinds of discussions it can have and the research it can do with publishers. There is also a concern that publishers may perceive the source of funding for the project, OverDrive, to be biased toward library interests, so it is seeking to diversify its funding sources.
Even so, the Panorama Project is a considerably more efficient route to progress than one-off experimentation by individual publishers, such as Macmillan’s embargo. It’s currently the best hope for the real data that both libraries and publishers must examine to lead to a resolution of the standoff.
Bill Rosenblatt is president of GiantSteps Media Technology Strategies and a founding partner of Publishing Technology Partners.
