As the calendar turned to 2021, it dawned on me that I have now been working with the American Library Association on e-book and digital content issues for a decade. My work with ALA began in 2011, when then-president Molly Raphael asked me to co-chair the association’s inaugural Digital Content and Libraries Working Group (DCWG) with Columbia University Libraries’ Robert Wolven.
Throughout my work on these issues, Alan Inouye, senior director, public policy and government relations at the ALA’s Public Policy and Advocacy Office, has been my liaison. I’ve come to greatly admire Alan’s steady, excellent work on policy, issues, including library e-books. Alan is an unsung hero of libraries. And I’m proud to continue my work alongside him as an ALA policy fellow.
As organizations, libraries consistently demonstrate the kind of sound environmental practices, innovation, and resilience that would be the envy of any private sector business. And nowhere has this been more evident than in the digital space.
In the early days of the DCWG, ALA’s efforts saw gains for libraries in terms of getting basic access to trade e-books, and in opening new paths of communication with publishers. And today, some 10 years later and facing new challenges, the library community’s work to advocate for the digital future of libraries remains an ongoing and increasingly important effort.
State of the Market
As with virtually every aspect of library activity today, the Covid-19 pandemic has had a profound impact on the digital content market. A year ago, tensions were flaring as many of the major publishers imposed new restrictions on library e-book lending—most prominently, Macmillan’s controversial embargo on new release e-books in libraries.
But when the pandemic hit last March, things changed. Macmillan abruptly rescinded its embargo, a welcome move, and many more publishers moved to increase flexibility in licensing to help library budget dollars go further. For example, Penguin Random House now offers one-year licenses for e-books and digital audio at a 50% prorated price, and HarperCollins has added more titles to its cost-per-circulation model as well as price discounts on an additional selection of frontlist and backlist titles.
Publishers have also helped libraries respond to the extraordinary increase in demand for digital programming by offering extended blanket permissions to record and host online readings. These permissions have enabled more read-aloud story times and live reader services for children in schools and public libraries. They have also served to highlight the importance of these vital programs and reinforced the library’s role as a vital learning institution.
Sharing digital collections between schools and public libraries has also taken on greater importance during the pandemic. In 2020, as students across the country were forced to switch to remote learning, it became clear just how many school districts lack access to the kind of rich, curated digital collections students need to succeed. In response, a number of vendors—Follett/Baker & Taylor and OverDrive among them—have expanded the ability of students to access e-books and other digital resources from their local public library’s digital collection without compromising student privacy. These service models are creating powerful new community learning partnerships. And, they are highlighting the importance of having trained school librarians to select, manage, and promote these collections to teachers, students, and families.
Still, the future for library e-books and digital content remains uncertain. The accommodations made by many publishers during the pandemic have helped, but the fundamental challenge for libraries in the e-book and digital content market remains: the library community and the major publishers still do not agree on what constitutes fair license terms for digital content. And because digital content must be licensed, libraries lack the kind of baseline rights to purchase and lend digital content that they enjoy with physical items under copyright law.
In 2021, libraries will almost certainly require more flexibility from publishers. The pandemic has had a serious impact on local budgets. And with many schools and public libraries remaining closed or offering only limited services, demand for digital resources will remain high.
Policy and Legal Issues
The library community is also monitoring several legal actions and public policy initiatives in the digital market.
Three states (Maryland, New York, and Rhode Island) have introduced legislation that aims to give libraries the ability to license digital content on terms in line with offerings to the general public. Meanwhile, state officials in Connecticut recently confirmed a live antitrust probe into Amazon’s e-book distribution agreements, joining California and Washington, which are also said to have active investigations.
At the federal level, a House subcommittee released a long-awaited report on competition in the digital market last October, setting the stage for potential legislation or regulatory action. And already, Seattle-based law firm Hagens Berman has filed a federal antitrust suit against Amazon based in large part on information contained in the congressional report. Filed on January 14, it alleges an e-book price fixing conspiracy with the Big Five publishers.
Also on the antitrust front, Penguin Random House parent company Bertelsmann made headlines in November with its bid to acquire Simon & Schuster. The deal now awaits regulatory approval. If approved, it would turn the Big Five into the Big Four and would give the Penguin Random House an even larger market share in trade publishing market. Despite antitrust concerns voiced by many stakeholders (most recently the Authors Guild and a host of other groups) my prediction is that the deal will go through.
Libraries have long complained about Amazon’s refusal to license its digital content to libraries, but there may soon be a positive first step on that front. Amazon is currently in talks with the Digital Public Library of America to provide library access to e-books from Amazon Publishing. Alan Inouye calls the news a promising start—but, he emphasizes, it is still just a start. “The library community must continue to focus and advocate for full access to Amazon published e-books and digital audio works,” he says.
On the copyright front, North Carolina senator Thom Tillis recently released a draft bill seeking to update the 1998 Digital Millennium Copyright Act. And the library community is closely watching a lawsuit filed by a group of major publishers against the Internet Archive over its scanning and lending of PDF versions of library books under a theory known as “controlled digital lending.”
Staying Engaged
No question, 2021 is setting up be an eventful year. The work of libraries figures to be permanently changed by the pandemic and its aftermath. And ALA and other library advocacy organizations will continue to engage publishers, distributors, and legislators on issues critical to our digital future.
This includes the reconstituted ALA Working Group on Libraries and Digital Content, cochaired by Leah M. Dunn and Kelvin Watson, as well as ALA’s E-books Interest Group, chaired by Stephen Spohn. With Daniel Albohn as its new project lead, I expect the Panorama Project to continue to contribute to an understanding of how libraries fit into the overall reading landscape. And a new nonprofit organization, Library Futures, has launched to promote “digital-forward “policies for libraries.
These initiatives represent a strong collective of voices and perspectives committed to a singular goal: finding digital solutions that work for libraries, publishers, and the communities we serve. And in the year ahead, the library community must come together, harness the energy around these issues, and deliver progress in our quest for equitable access to digital content.
