Ebooks and Copyright Issues

e-reader with paper book pages

More and more Americans turn to e-reading

The past year has seen ebooks make huge gains in popularity, perhaps at the expense of printed books.

In a Pew Internet and American Life study published at the end of 2012, the proportion of all Americans age 16 and older who read ebooks had increased from 16 percent to 23 percent, while the proportion of those who had read a printed book in the previous 12 months fell from 72 percent to 67 percent. The shifts coincided with an increase in ownership of electronic book reading devices (e-readers).

The proportion of readers who owned either a tablet computer or an e-reader such as a Kindle or Nook grew from 18 percent in late 2011 to 33 percent in late 2012, according to the Pew report: “As of November 2012, some 25 percent of Americans ages 16 and older own tablet computers such as iPads or Kindle Fires, up from 10percent who owned tablets in late 2011. And in late 2012, 19 percent of Americans ages 16 and older own ebook reading devices such as Kindles and Nooks, compared with 10percent who owned such devices at the same time last year.”

And those numbers probably received a big boost during the 2012 gift-giving season, which featured heavy promotion and purchasing of both tablet computers and e-readers.

Should publishers worry that ebook borrowers don’t buy books? Apparently not. Eighty-eight percent of those who read ebooks also read printed books, according to the Pew surveys. Compared with print-only book readers, ebook readers read more books, read books more frequently, are more likely to have bought their most recent book rather than borrowed it, and are more likely to say they prefer to buy books in general, often starting their search online. As for ebooks specifically, guests on National Public Radio’s “Diane Rehm Show” on August 28, 2012, said that among those who read books electronically, 41 percent of those who borrow them from the library bought their most recent ebook.

But libraries might worry that they’re not getting the e-word out to their patrons.

Many remain unaware that libraries offer ebooks

As libraries and some ebook publishers continue to try to work out their differences (see following section), the general public, including many library patrons, remain unaware that libraries offer ebooks.

Only about 12 percent of Americans age 16 and older who read ebooks say they have borrowed an ebook from a library in the past year, according to a Pew Internet and American Life study published in June 2012. But people in the broader public—not just ebook readers—are generally not aware they could borrow ebooks from libraries. Among those age 16 and older, 62 percent said they did not know whether they can borrow ebooks from their library, about 22 percent said they knew that their library loans ebooks, and 14 percent said they knew their library does not lend out ebooks. (In fact, more than three-quarters of the nation’s public libraries lend ebooks.)

Among specific groups surveyed for the Pew study:

  • 58 percent of all library card holders said they did not know whether their library provides ebook lending services.
  • 55 percent of all those who said the library is “very important” to them said they did not know whether their library lends ebooks.
  • 53 percent of all tablet computer owners said they did not know if their library lends ebooks.
  • 48 percent of all owners of e-readers such as original Kindles and Nooks said they did not know whether their library lends ebooks.
  • 47 percent of all those who read an ebook in the past year said they did not know whether their library lends ebooks.

“Clearly there is an opportunity here for us to step up our outreach and increase public awareness of all the 21st-century services our libraries have to offer readers, thinkers, entrepreneurs, and dreamers,” ALA President Molly Raphael said in a June 22, 2012, statement. “Of course, awareness is not enough. When people go to their public libraries to borrow ebooks, they should be able to find titles from all of our publishers. . . . Libraries cannot lend what they cannot obtain.”

ALA and libraries push for fairness in ebook lending

The vast majority of publishers do make ebooks available to libraries, but ALA still bookended 2012 with a series of meetings in New York to further the case for library ebook lending. On January 30–February 1, an ALA delegation of members and staff met with leaders of several “Big Six” publishers (Hachette, Macmillan, Penguin Group, HarperCollins, Random House, and Simon & Schuster). December 2012 concluded with ALA members and leaders meeting with representatives of the Association of Authors’ Representatives and the Association of American Publishers. High-level communications continued between the year’s bookends as the library community sought a better understanding of publisher concerns.

Examination of the issue of library ebook lending involves a much broader look at the entire publishing ecosystem, including not only publishers and libraries but also intermediaries, authors, and even literary agents. The first meetings also introduced a central point of negotiation: How much “friction” (defined in this context as any inhibitor or deterrent to the easy borrowing of a book) must libraries tolerate in order to do business with publishers?

“Borrowing print books is generally considered to involve a fair amount of friction,” said Alan S. Inouye, director of the Office for Information Technology Policy in the ALA Washington Office. “The library must have the book in its collection. It must be physically on the shelf. The patron must physically come to the library to borrow it, waiting in line to check it out. After the loan period, the book must be physically returned. Late returns involve fines. One cannot write in books, tear out pages, etc.”

“With ebooks, in theory, most of all of these impediments are overcome,” Inouye said. “Thus, from some publishers’ point of view, it is ‘too easy’ to borrow an ebook. In this sense, publishers like to introduce inhibitors to easy borrowing. . . . An egregious friction example is that the patron would have to come to the physical library to download an ebook.”

Increasing friction leads to a call for action

In fact, friction (in the conventional sense) increased a bit between libraries and some publishers over the course of the year as one publisher stopped selling its titles to libraries while it strategized a new business model, and another dramatically raised prices to libraries for many ebook titles. In September, ALA President Maureen Sullivan published an open letter to America’s publishers calling for action:

It’s a rare thing in a free market when a customer is refused the ability to buy a company’s product and is told its money is “no good here.” Surprisingly . . . libraries find themselves in just that position with purchasing ebooks from three of the largest publishers in the world. Simon & Schuster, Macmillan, and Penguin have been denying access to their ebooks for our nation’s 112,000 libraries and roughly 169 million public library users. . . .

Librarians understand that publishing is not just another industry. It has special and important significance to society. Libraries complement and, in fact, actively support this industry by supporting literacy and seeking to spread an infectious and lifelong love of reading and learning. . . . We have met and talked sincerely with many of these publishers. We have sought common ground by exploring new business models and library lending practices. But these conversations only matter if they are followed by action: Simon & Schuster must sell to libraries. Macmillan must implement its proposed pilot. Penguin must accelerate and expand its pilots beyond two urban New York libraries.

Before the end of the year, Penguin (see below) had expanded its pilot to Cuyahoga County (Ohio) Public Library and to the County of Los Angeles Public Library. Hachette also had a pilot underway, and Macmillan confirmed its intent to undertake a pilot in 2013.

Capitalizing on increased media attention, the ALA Digital Content and Libraries Working Group (DCWG) followed up with tools to support librarians across the country in raising awareness that, for the first time in history, libraries are unable to purchase content at any price from publishers. The Working Group also created reports related to ebook business models for public libraries and initiated a series of tip sheets to provide information on the numerous and often-complicated issues in providing digital resources to their patrons and students. Two digital supplements to American Libraries magazine (January/February 2012 and May/June 2012) also focused on e-content issues and concerns.

Douglas County (Colo.) Libraries launched a monthly report comparing availability and prices for digital content to the library versus what was available to consumers. (These reports are summarized in postings on the American Libraries E-Content blog.) The first pricing comparison of 2013 showed that fully half of Amazon’s top 20 bestsellers were not available to libraries from library ebook distributors OverDrive or 3M, and that of those that were, none were available at the consumer price. Some of them cost more than five times as much.

The Kansas State Library turned to social media to raise awareness of these challenges and create an interactive forum for a large community of library users and community supporters.

America’s libraries also began positioning themselves for a busy and creative 2013—expanding the publisher conversation beyond the “Big Six,” collaborating with author groups and individual authors, working with publishers that focus on the school library market, and developing new ways of bringing digital content to readers.

But Forbes contributor David Vinjamuri may have had it right. In a December 11, 2012, article titled “The Wrong War Over eBooks: Publishers vs. Libraries,” he said that as bookstores disappear and the number of books available to read swells, “libraries will play an ever more crucial role. . . . For publishers, the library will be the showroom of the future.” The catch, he said, is that current pricing “is based on the paradigm of the printed book. . . . By changing the model for pricing an ebook, both parties could find a clear and equitable resolution to the current impasse.”

Penguin offers libraries e-titles

Starting April 2, 2013, libraries can offer ebooks from Penguin Group (USA) at the same time that the hardcover comes out, a switch from the previous policy of delaying downloads for six months, the publisher announced. Like HarperCollins and other publishers, Penguin is still not offering unlimited access. Libraries are only allowed to lend out one e-edition at a time.

Penguin’s decision came in the wake of a pilot project, begun in September 2012, to make its ebooks available to patrons of the New York Public Library and the Brooklyn Public Library.

Under the initial phase of the pilot, ebooks were made available to libraries for lending six months after release date, each book could be lent to only one patron at a time, and at the end of a year the library had to buy each book again or lose access to it. Pricing appears to be similar to consumer pricing, with many $9.99 and $15.99 items.

Anthony Marx, New York Public Library president, said, “Since our founding in 1895, the New York Public Library has made it our mission to provide free books and educational materials for all, particularly for those of limited means. As ebooks grow in popularity, libraries nationwide have faced diminishing access to that content. [The New York Public Library] is determined to work together with publishers and authors to craft a fair way to ensure ebooks are available to libraries and their users.”

Linda E. Johnson, president and chief executive of Brooklyn Public Library, was also on board. “We are excited to partner with Penguin Group (USA) to make their ebooks available to our patrons,” she said. “Brooklyn Public Library’s e-content collection currently offers more than 28,000 titles, and in the past fiscal year, we have tripled our ebook acquisitions budget.”

In November, the Penguin Group announced it would work with distributor Baker & Taylor to expand ebook lending through the Los Angeles County library system and the Cuyahoga County (Ohio) Public Library. Penguin also began lending digital audiobooks to libraries through OneClickdigital.

Simon & Schuster yields . . . but only on two titles

Simon & Schuster, which among the Big Six publishers had shown the least interest in bringing its catalog of titles to libraries under any conditions, made news in late 2012 by making two titles available to libraries.

“Fahrenheit 451, by library advocate Ray Bradbury, was made available at the now-deceased author’s express requirement, and the 2013 All Iowa Reads (AIR) book selection, “The Year We Left Home” by Jean Thompson, was made available to libraries on OverDrive starting January 1. The AIR selection was “an important component” of the publisher’s decision, said Wendy Sheanin, director of Simon & Schuster’s marketing and adult publishing group, according to a press release from the Iowa Center for the Book.

“I am so relieved,” said AIR committee member (and Iowa Center for the Book Coordinator) Robin Martin. “Making the AIR book available in multiple formats is essential to our program’s success. With the changes in the publishing industry, we can no longer depend on large print as an option for special needs readers. Ebooks offer an alternative when users can adjust the size of text to their needs. When we found out that Simon & Schuster did not sell ebooks to libraries, my heart sank. We were on a mission from that day forward.”

An ebook “coalition of the willing”

As libraries remain in something of a stalemate with several Big Six publishers, the ALA and many libraries are looking toward working with smaller and independent publishers, directly with authors, and with content distributors to provide more resources to readers.

Not all publishers are following the path of some Big Six firms. In fact, hundreds of publishers of ebooks have embraced the opportunity to create new sales and reach readers through libraries. One recent innovation allows library patrons to immediately buy an ebook if the library doesn’t have a copy or if there is a waiting list they would like to avoid—a win-win relationship for both publishers and library users.

Self- and independently published ebook distributor Smashwords, for instance, announced a new service in August 2012 that allows libraries and library networks to acquire and establish large opening collections of ebooks direct from the company. Douglas County (Colo.) Libraries became Smashwords’ first client, acquiring 10,000 titles at an average cost of $4 per title—nearly doubling the number of titles available from the Colorado library. Smashwords enables authors and publishers to set their own library prices using a web-based pricing tool.

Libraries also are exploring and developing new platforms to improve ebook access and delivery. The Genesee Valley Educational Partnership School Library System, for instance, improved access to digital content at a time of deep budget cuts through Webooks. The library system, based in LeRoy, New York, near Rochester, created a Drupal website that allowed librarians across 22 school districts to pool a portion of their individual-district aid for library materials while maintaining control over spending through a participatory selection process. By buying together, the Genesee Valley system was able to acquire more ebooks than each school district would have been able to afford individually, and the project demonstrated to administrators that the libraries are working together to find creative solutions.

“Most small publishers will work with models such as Douglas County, understanding that free books at libraries sell books to others,” said Walt Crawford, referring to the Douglas County (Colo.) Libraries, which has reached agreements with some publishers that will allow the library to buy outright and manage the digital rights for ebooks. “Copyright will continue to be a mess, but fair use is starting to gain more traction and judicial appreciation,” said Crawford, who is a library writer, researcher, and systems analyst with several decades of experience in library technology.

Finally, the ALA and others will place more attention on issues of accessibility for people with print disabilities (for example, people who are blind or have low vision, dyslexia, or learning disabilities, or have a physical disability that prevents them from using print) and with publishers like Scholastic and Rosen Publishing that focus on the school and school library markets.

Bookless in Bexar (a county in Texas)

One Texas county is apparently ahead of the curve . . . or not.

Bexar County, Texas, is planning to open BiblioTech, a public library offering only electronic books, later this year in San Antonio. This entirely digital public library will be an information storehouse where people will be able to check out books only by downloading them to their own devices or by borrowing electronic readers.

“The trial location, opening in a satellite government office on San Antonio’s south side in the fall, will have a selection of about 10,000 titles, and 150 e-readers for patrons to check out, including 50 designed for children,” Miguel Bustillo wrote in the February 6, 2013, Wall Street Journal. “The library will allow users to access books remotely and will feature 25 laptops and 25 tablets for use on-site, as well as 50 desktop computers.”

The project has its skeptics, especially those who say that popular titles won’t be available.

2012: A year of complex copyright issues

In January, grassroots advocates effectively stopped two Congressional bills: the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (known by the mercifully short acronym PIPA) and the Stop Online Piracy Act (SOPA). ALA went on record as opposing these bills, and ALA’s Office of Government Relations issued the PIPA, SOPA, and OPEN Act Quick Reference Guide (PDF) (“OPEN” referring to the Online Protection and Enforcement of Digital Trade Act). On January 18, 2012—a day designated as Internet Blackout Day—several popular websites such as Google, Wikipedia, and Flickr protested PIPA and SOPA by blocking access to their content for the day.

In July, the Library Copyright Alliance (LCA)—which is comprised of ALA, the ALA’s Association of College and Research Libraries, and the Association of Research Libraries—filed an amicus curiae brief with the U.S. Supreme Court in support of petitioner Supap Kirtsaeng in Kirtsaeng v. John Wiley & Sons, Inc. (Docket no. 11-697). Wiley, a publisher of textbooks and other materials, claimed Kirtsaeng infringed its copyrights by reselling cheaper foreign editions of Wiley textbooks in the United States that his family bought—lawfully—abroad.

On March 19, 2013, the U.S. Supreme Court issued a 6–3 decision in support of consumer rights and libraries, ruling that Americans and U.S. businesses have the right to sell, lend, or give away the things they own that were made overseas. The LCA believed an adverse decision in Kirtsaeng could have affected libraries’ right to lend books and other materials manufactured abroad, and the majority on the High Court apparently agreed. “The American Library Association tells us that library collections contain at least 200 million books published abroad,” wrote Justice Steven Breyer. “How, the American Library Association asks, are the libraries to obtain permission to distribute these millions of books? How can they find, say, the copyright owner of a foreign book, perhaps written decades ago? Are the libraries to stop circulating or distributing or displaying the millions of books in their collections that were printed abroad?”

In September, a federal judge granted preliminary approval to a $69 million settlement between 49 states and three U.S. publishers over alleged price-fixing of electronic books. The accord—between Hachette, HarperCollins, Simon & Schuster, and 49 states (all but Minnesota)—was approved by U.S. District Judge Denise Cote in New York. The District of Columbia, U.S. Virgin Islands, Northern Mariana Islands, and Puerto Rico also joined in the settlement. The states had alleged that the publishers unlawfully agreed to fix the prices of electronic books in violation of antitrust law.

In October, a federal district court ruled that the HathiTrust Digital Library’s use of digitized works is a fair use permitted under the Copyright Act. The October 10, 2012, ruling allows HathiTrust, a collaborative repository of more than 10 million volumes of digital content administered by Indiana University and the University of Michigan, to continue serving scholars and people who are print-disabled. HathiTrust also provides helpful guidance on how future library services can comply with copyright law.

Also in October, the Association of American Publishers announced it had reached a settlement in its lawsuit filed in 2005 against Google. The lawsuit was brought by authors who alleged that Google violated copyright by scanning books to create Google Book Search, a search tool similar to its internet search engine. Since the settlement only applies to the five publishers, questions remain since the orphan works situation (when copyright holders cannot be identified or located) is not yet resolved within Google Books.

Finally, ALA released “Complete Copyright for K–12 Librarians and Educators,” a copyright law guidebook specifically written for teachers and librarians. The book addresses the challenges that school librarians and teachers face concerning copyright-protected print and online materials at schools and outside the traditional educational environment. It explores complex situations often encountered in classrooms, such as the use of copyrighted material for school assignments, library operations, extracurricular activities, and on the web.

“Copyright and access issues will be resolved”

To end on a positive note, courtesy of Ben Bizzle, director of information technology at the Craighead County Jonesboro (Ark.) Public Library: “I have every confidence that the market will come up with a model that works for everyone.”

Bizzle is in a good position to know: His library has made extensive and successful use of technology to promote its services—and keep up with its patrons in an era of rapid technological development (see Social Media section).

“Ebooks are the future of book consumption, and therefore, in many ways, the future of libraries,” Bizzle said. “Everything is going digital. . . . When I can put thousands of books on an e-reader, it makes no sense for me to haul around physical books. We will adjust.”

“Copyright and access issues will be resolved through legislation and the market,” Bizzle added. “Ownership issues will be resolved. There will be some sort of ‘buy-it-now’ option for titles on hold, or a charge-per-checkout model where simultaneous checkouts are allowed and a publisher’s full catalog is available, but libraries pay a nominal amount per checked-out copy.”

He concluded, “Due to the instant delivery nature of ebooks, publishers have a tremendous opportunity to utilize libraries as front line sales opportunities.”


The State of America's Libraries 2013