By Meredith Farkas | March 1, 2011
The library world is abuzz about Harper Collins changing the terms by which libraries can license their books on Overdrive. If you haven’t read about it already, here’s some background info. I’m not particularly up-in-arms about what Harper Collins did; I’m far more concerned with the e-content licensing models so many libraries have been blithely accepting for years.
I find it amusing that some vendors and librarians want to apply the print model to e-books, until that model becomes inconvenient for them. Publishers want to impose the one-reader-at-a-time model, because libraries traditionally bought more than one book when demand was high. Librarians compare the new 26-circ limit Harper Collins imposed to the typical life of print hardcover books because print books typically last longer. The simple fact of the matter is, an e-book is not a print book. Hundreds of users can read the same book at once online. It can last forever. And publishers can impose any restrictions they want on them as long as people/libraries are willing to accept them. Personally, I’d be much more annoyed that an e-book is limited to one user at a time than that I’d have to buy another copy if it’s popular.
The eBook User’s Bill of Rights talked about extending the right of first-sale to e-books. I am hugely in favor of this, but if we are to have rights to our digital content, we need to stop paying for things we don’t own. I’m not a lawyer, but in my mind, the question is this: when a library buys an eBook, is it buying a book or licensing access to a book? If the former, then the library is the owner of the electronic book and the first-sale doctrine would apply. If the book is licensed to the library with specific restrictions on its use, then the library doesn’t actually own anything and must abide by any restrictions imposed by the company granting the license to the library. We don’t have Overdrive at my library, so I’m not familiar with the contracts libraries entered into when they signed up, but if they do not outright own the books, I don’t believe first-sale doctrine applies. Whether these publisher and vendor licenses are legal or enforceable will be up to the courts, and it’ll be interesting to see how digital content rights are challenged over the next decade. Oh to be an IP lawyer!
I’m not that angry about the whole Harper Collins, thing, and not just because I’m an academic librarian. I’m not angry because what’s happened is pretty consistent with so many other instances where a content provider middle man has acceded to the demands of a publisher to the detriment of libraries. There’s really no “fair” in e-book licensing and there are lots of crazy schemes for e-book loans. Maybe the big problem is that Harper Collins changed the game in the middle of play. Vendor valuation and pricing of e-books vary wildly. Many publishers charge less for eBooks than print books, some charge the same amount as the print, and some even charge more. Eventually, the market will determine what prices people are willing to pay for e-books, but right now, it all feels like one big experiment (and it probably is).
I am deeply concerned about the rights we give up and the erosion of the long-term health of our collections with every contract we sign. When we look at how much of our collection we own, it becomes a smaller and smaller part of the whole each year. And with some vendors, we lose so many rights that it can sometimes prevent users from getting anything out of the content.
If libraries don’t want to constantly be the ones losing in this equation, we need to show that we actually aren’t going to accept things the way they are. Complaining and threatening do not work when a company is concerned with its long-term financial survival. Real action, taken by a group of libraries large enough to make a dent in a company’s bottom line will. Publishers have all of the power right now, because they are big and their choices have a huge impact on vendors like Overdrive. (Plus, they have organizations that represent their interests!) If libraries aren’t willing to walk away from a bad deal, they will never have the power. Some might argue that in walking away we are hurting our patrons, but I think we’re doing them a much greater disservice when we forget our important role in cultural preservation.
I’ve been saying for a while that libraries need to come together around some organization that will exert pressure on vendors and promote the needs of libraries and their patrons. Without an organization like that, I can’t imagine a future where libraries are dealt with fairly by publishers. We’ll always be the little guy. It’s like unions. An individual complains to a company about being mistreated, they may or may not be heard. A union, made up of lots of individuals, has a lot more clout. Toby Greenwalt suggests that we negotiate, but what do we have to negotiate with as individual libraries? How do we negotiate when there is no we?
We need a large organization to represent our interests and to come up with alternative models for e-book access or ownership that benefit everyone. I don’t know what this organization would look like, but I can’t envision a good future for libraries that doesn’t involve us doing a lot more banding together to pressure vendors/publishers and to create our own content and technology solutions.