After recent Black Lives Matter protests, Americans rushed to libraries to request books on history, politics, and anti-racism. There were immediate shortages of certain books, with up to six month waits for commonly recommended titles. This happened throughout the entire system — even electronic books had long queues to check out.
This is, in part, because libraries are required to treat ebooks as they do physical copies; libraries can lend out one copy at a time for each ebook license they’ve purchased. If there are more people wanting to check out a book than purchased licenses, there will occasionally be long queues, as there was this summer.
However, the waits are a small symptom of a much larger (and growing) problem; book publishers are looking to further limit the licenses that libraries use to loan out ebooks. They have used a variety of tactics: Some publishers will not sell their ebooks to libraries, at any price. One publisher decided that libraries could only buy and lend out a single copy of newly released ebooks, no matter the size of the library district. Others require the library to re-purchase the book after a certain number of lends. These moves restrict the ability of libraries to serve the educational and cultural goals of their communities, and take away resources from library patrons.
The Current Landscape
As we’ve explained before, libraries rely on the first sale doctrine to operate. Under this doctrine, the lawful owner of a book can dispose of the book however they want, including by lending the book out to others. Although the first sale doctrine predates digital media, libraries have adapted well. Controlled Digital Lending (CDL), which relies on fair use provisions of copyright law, ensures that libraries own a physical copy of each ebook they lend out. The rights of authors are preserved, Americans read books by the method most accessible to them, and libraries continue to provide information to all. Given the growth of ebooks, the obvious next step would be for libraries to directly buy digital copies and lend them out in the same way, right?
Unfortunately, book publishers have not been happy with this. Publishers put strict licenses on digital copies, increasing costs and restricting the ways that libraries can lend. The problem is getting worse, and it’s bad news for the public. Congress needs to clarify that CDL and digital lending are clear examples of fair use, preventing publishers from abusing their licenses.
Examples of Abuse
Amazon’s publishing arm does not license ebooks to libraries at all. If a reader wants to find an author who has published with Amazon, their only option is to purchase the book directly from Amazon. Libraries are completely excluded from these titles.
Macmillan, one of the “Big Five” publishing houses, implemented a policy that library systems were limited to buying a single digital copy of their books for the first two months after the book was released. This policy applied equally to library systems in rural areas and populated cities. Everyone across the system would have to wait in line for a single copy. This policy was retracted shortly after the COVID-19 outbreak, but serves as a warning of what publishers can do if there are no fair use exemptions to their licenses.
Many publishers require the library to re-purchase the digital book license after a certain period of time has passed, or after a certain number of lends. As one librarian noted, this might decrease the likelihood that a library purchases a book from a less established author, as the library now has to weigh the economic return on the cost of the limited license.
Digital licenses — when they are available — are extremely expensive. One book with a suggested retail price of $28.99 (and found for much cheaper on Amazon) costs libraries $60 to keep on their shelves for two years. Another book costs $60 at retail, but $240 for libraries, for only two years of access. This is happening against the background of libraries fighting budget cuts around the country — and of all of our institutions, libraries should be getting even more investment right now, as they provide resources to the hardest-hit communities around the country. Ebooks in particular are especially important for readers with physical, visual, or reading disabilities. Adjustments to brightness and typeface can be significant aids for some readers, and these patrons may not have an equivalent replacement if their access to digital books is decreased.
Congress Must Act
These examples paint a stark picture of publishers fighting to expand their rights at the cost of Americans’ access to information. The careful balance of creativity and progress is tilting in a direction that hurts the people of this country. It’s time for Congress to step in and clarify that CDL and digital lending fall under the fair use doctrine. Let libraries do their job, and I might finally move up in this year-long book queue.
