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Librarians and lawmakers fight for better access to eBooks

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

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

“The current model is frustrating for libraries and archives whose service mission is completely different from the capitalist goals of a for-profit corporation,” said Kyle K. Courtney, the Harvard University copyright advisor and a founder of Library Futures, an advocacy group pushing for the bills. . “We’ve dealt with publishers and rights holders for centuries, but it’s never been this bad.”

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

Publishers argue that the marks and other restrictions protect authors’ intellectual property rights and encourage companies to invest in their work. As the cost of e-book licensing has continued to rise, librarians and their attorneys in at least nine states have pushed for legislation that would require publishers, particularly the “Big Five” who produce the vast majority of consumer books, to make libraries more “reasonable.” ” license terms.

State legislators have bipartisanly supported such bills, but several measures failed before states could implement them. New York Governor Kathy Hochul vetoed her state’s e-book law in late December, citing copyrights. In June, a judge in Maryland dealt a second blow to the motion, ruling that federal law overrides states’ attempts to regulate e-book licensing.

Undaunted, librarians and lawmakers in states like Maryland, Massachusetts and New York say they are preparing a new legislative strategy for next year’s session. The new bills seek to circumvent the stumbling blocks that sank legislation in Maryland and New York.

Rising prices, restrictive conditions

The latest legislative push from librarians comes after two breakneck years for digital loans. Such checkouts (including e-books, audiobooks and digital magazines) were more than half a billion in 2021, according to OverDrive, the largest distributor of digital library content — a 55% increase from two years earlier.

In response, many U.S. libraries have rapidly expanded their digital collections and shifted spending to e-books and digital audiobooks. However, libraries rarely “own” eBooks. Instead, they license the right to lend them — a model more akin to buying software than shopping at a bookstore.

Under this arrangement, publishers can set the expiration date of e-book licenses, limit the number of times an e-book 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 loans, costing between $60 and $80 per license, according to Michele Kimpton, the global senior director of the nonprofit library group LYRASIS.

In a 2019 congressional testimony, the American Library Association highlighted the difference between consumer and library e-book prices, using the 2014 bestseller All the light we can’t see as an 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 have always been on the digital bookshelf of libraries, but now you pay $60 every two years for a title,” Kimpton says. “That’s certainly not beneficial for libraries, but that’s where we are now.”

In addition to budget constraints, which have remained more or less flat in most places since the early 2000s, librarians say current licensing models have eroded their digital back catalogs and distorted their current collections. Forced to spend more on fewer books, librarians inevitably turn to bestsellers, big-name titles and new installations in popular series, says Michael Blackwell, the director of St. Mary’s County Library in rural Maryland.

That doesn’t take into account books by new and emerging authors, middle-list books, and some older books with expired licenses. Customers often wait weeks or months to borrow popular titles.

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

“Something has to be thought of”

However, regulating e-book licensing has proved challenging. In 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 require publishers to license e-books to libraries at ” reasonable” prices and terms, with the word “reasonable” often left to future interpretation.

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

The issue was generally non-partisan, said Alan Inouye, the senior director for public policy and government relations at the American Library Association. To the political left, e-book licensing is a matter of equality and equal access to knowledge; on the right, lawmakers have sometimes framed expensive and restrictive licensing as a bad use of public dollars.

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

Publishers and their supporters have also argued that the 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, Hochul vetoed the e-book law in New York State after intense lobbying from the arts and entertainment industry. She noted that federal copyright law gives authors exclusive control to decide how they share their work. That same month, the Association of American Publishers filed suit against Maryland’s e-book law on similar grounds. In June, a district court ruled that federal copyright law prevents Maryland from regulating e-book licensing.

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

Proponents and lawmakers in several states now say they are preparing to introduce revamped e-book accounts that can withstand legal scrutiny, though federal law would still take precedence over any state law that infringes copyright, Hart said. One model, developed by Library Futures, states that states can regulate the terms of e-books under contract and consumer protection laws.

Massachusetts lawmakers have already worked with Library Futures to amend their e-book law, said state Representative Ruth Balser, a Democrat who co-sponsored an earlier draft last year. That measure did not pass the committee, Balser said, because lawmakers first hoped to see how the Maryland Association of American Publishers lawsuit went.

Maryland lawyers, meanwhile, are preparing a bill that would prohibit public libraries from entering into “unfair” contracts, potentially forcing major publishers out of the state’s library market.

New York state legislators and library groups have also begun discussions about how to “adjust” the bill that Hochul had vetoed, said State Assembly member Josh Jensen, a Republican co-sponsor of New York’s failed e-book bill. As a teenager, Jensen worked at a local library to clear out books.

“I was frustrated, of course,” Jensen said of the governor’s veto. “But I think something has to be thought of. We don’t want to dictate terms here – we’re just saying there should be reasonable terms and good faith. It’s a very common sense argument.”

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