Ebooks and Copyright Issues

Woman using tablet

Digital reading makes gains, but books are holding their own

Ebooks continue to make gains among reading Americans, according to a survey conducted in January by the Pew Research Center, but few readers have completely replaced print with digital editions—and the advent of digital reading brings with it a continuing tangle of legal issues involving publishers and libraries.

The proportion of adults who had read an ebook in the past year rose to 28%, up from 23% at the end of 2012. During the same period, 69% of Americans reported reading a book in print, up from 65% after a slight dip in 2012; and 14% of adults listened to an audiobook.

“Print remains the foundation of Americans’ reading habits,” the Pew researchers found. Most people who read ebooks also read print books, they reported, and only 4% of readers described themselves as “ebook only.”

More generally, 76% of adults said they had read a book in some format in the previous year. The “typical American adult” read or listened to five books in that period, according to the Pew report, and the average for all adults was 12 books. The researchers said “neither the mean nor median number of books read has changed significantly over the past few years.”

Not surprisingly, 42% of Americans age 16 and older own tablet computers, according to another Pew survey, and 32% have e-reading devices such as Kindles or Nooks. Overall, the number of people who have a tablet or an ebook reader among those 16 and older stood at over 50%, according to the survey, which was conducted in December 2013.

More than half of those in households with income of $75,000 or more now have tablets, up from 25% last year, according to the survey, and the proportion of those in upper-income households who have e-readers also doubled from the previous year, to 38%.

Ebook publishers and libraries make peace, sort of . . .

After years of conflict between publishers and libraries, 2013 ended with all the major publishers participating in the library ebook market, though important challenges, such as availability and prices, remain.

Macmillan and Simon & Schuster were the major newsmakers in this field in 2013. Neither was in the library ebook market in 2012, and there was little optimism about the prospects for 2013. However, Macmillan announced a library ebook lending pilot in January and by October had expanded its library ebook offerings to include its full ebook backlist of more than 11,000 titles.

Simon & Schuster, meanwhile, entered the library ebook market in April via its own pilot, with the requirement that libraries offer patrons the option to buy ebooks alongside the borrowing option. By year’s end, the pilot had expanded with the addition of 12 large public library systems and three consortia. And in September, Simon & Schuster began a second pilot program, this one aimed at making 450 of its most popular children’s and young adult titles available for use in school classrooms as ebooks.

In March, Penguin Book Group (USA) ended its embargo policy so that all ebook titles would be available to libraries at the same time as in the consumer market; and in October, Penguin restored library ebook access via OverDrive, by far the largest distributor of library ebooks. In May, Hachette Book Group announced that all its ebooks would be available to libraries, with new ebooks being released at the same time as print books at roughly three times the primary physical book price. After a year of publication, the purchase price drops by about half.

(Apple, on the other hand, spent much of the second half of 2013 seeking to overturn a July verdict by federal judge Denise Cote that Apple had conspired with five publishers to fix ebook prices. In February 2014, a three-judge panel of the United States Court of Appeals for the Second Circuit rejected Apple’s request  to stay a court-appointed monitor from doing any more work pending the outcome of its challenge to Cote’s order appointing the monitor.)

Random House and Penguin merged in July, though without any obvious changes in their respective ebook policies, so 2013 became the first year in which all of the Big Six (now Five) publishers were engaged with library ebook lending at some level.

Still, not everyone is delighted. Clifford Lynch, executive director of the Coalition for Networked Information, for one, calls the library ebook situation “appalling.” Lynch, in an article in American Libraries, focuses on the library’s roles in society to preserve cultural heritage, provide accommodation for people with disabilities, and protect individual privacy—and how the ebook status quo gravely threatens libraries’ ability to fulfill these roles.

Lynch is correct that many challenges remain, including different business models, privacy concerns, sales to consortia, accessibility for people with disabilities, digital preservation, interoperability, and integration among library systems. It seems likely that 2014 will be another year of fundamental change for the library ebook market and the publishing ecosystem generally.

. . . But it’s still a troubled relationship

The impact of all this on public library collections “is enormous and will continue to mirror the public’s infatuation with e-reader technology,” according to Jeannette Woodward, author of a number of books, including The Transformed Library: E-Books, Expertise, and Evolution (2013). “Academic libraries, of course, are more dependent on journals, but they too are experiencing considerable demand for scholarly ebooks.

“It is public libraries, however, that are having the most difficulty getting the ebooks they need and are being forced to spend an ever larger portion of their strained budgets” to do so.

To some extent, “the popularity of ebooks has taken librarians by surprise,” Woodward says. “They were aware of developments in digitizing print materials long before the general public, but I think they imagined that it would take much longer for ebooks to gain popularity. Not only are their regular library customers demanding ebooks, but many people who were not readers are getting hooked on them.”

Woodward feels that publishers see libraries as the enemy.

“Trade publishers have always had an unrealistic idea of library circulation,” she says. “They imagine that library books circulate 50 or more times, causing them to lose 49 sales. This attitude, of course, ignores the many books that circulate rarely and assumes that library readers would purchase every book they borrow. Because the industry is in financial difficulty, it may be even more anxious to lay blame on libraries.”

Major publishers and publishing associations seem to fear that libraries could circulate ebooks to thousands of readers, decimating their profits. “These fears are, of course, largely unfounded,” Woodward says, “but they are making it very difficult for libraries to purchase the ebooks demanded by their patrons. Some publishers refuse to work with libraries, while others insist on charging libraries many times the prices paid by their other customers.

“Since individual libraries have very little clout, professional organizations like ALA will need to devote considerable time and resources to resolving this conflict,” Woodward says. “On the one hand, publishers need to be educated about the real world of libraries and understand that libraries can actually help their bottom line. On the other, libraries need to show their muscle, making it clear that when they act together, they are a force to be reckoned with.”

Court case should push libraries to share titles

Woodward says libraries have been operating at a disadvantage since the case of Vernor v. Autodesk, which dealt libraries a crippling blow by limiting the “you bought it, you own it” principle asserted by such organizations as the Electronic Frontier Foundation, an international nonprofit digital rights group. (In Vernor v. Autodesk, the U.S. Court of Appeals for the Ninth Circuit reversed a lower court ruling that had held that when the transfer of software to a purchaser materially resembled a sale, it gave rise to a right to resell the copy under the first-sale doctrine.)

“Since the law viewed ebooks as nothing more than computer software, publishers gained the right to exert near total control over their use,” Woodward says. Since the decision (2010), “publishers have felt free to place one restraint after another on libraries, whether they are dealing with them directly or through distributors like OverDrive or the 3M Cloud Library.”

Some publishers refuse to make their ebooks available to libraries at all, Woodward says, and “those that don’t exclude libraries may charge as much as 10 times the price they charge individuals.

“When one considers that this allows libraries to merely rent or license ebooks for a year or possibly for a maximum of 26 circulations, it becomes clear that libraries are in an untenable position. Around the country, we see library systems and consortia responding to the challenge, devising novel ways of providing their patrons with ebooks at an affordable cost. However, publishers still have the upper hand.”

Woodward says that libraries can reduce costs by learning to share titles. “Negotiating as a large group with significant buying power may also be the only way we can force publishers to listen to us,” she says.

“No library is an island, but in the past, we’ve often behaved as if they were,” Woodward says. “We’ve reinvented the wheel far too often and duplicated resources and services. The ebook crisis can only be resolved if we all find ways to surrender some of our autonomy while continuing to focus on our users’ needs. The rigid walls between types of libraries—academic, public, school, and special—also need to come down if libraries are to have maximum bargaining power.

Another step forward in Authors Guild v. Google

And in November 2013, after eight years of litigation, the U.S. District Court for the Southern District of New York upheld the fair use doctrine when it dismissed Authors Guild v. Google, a case that questioned the legality of Google’s searchable book database. U.S. District Judge Denny Chin’s decision protects the Google database that allows the public to search more than 20 million books.

In his decision, Judge Chin referenced an amicus brief submitted by the Library Copyright Alliance, which is made up of the ALA, the Association of College and Research Libraries, and the Association of Research Libraries, and enumerated the public benefits of Google Book Search by calling the project a fair use under the copyright law. The Authors Guild has filed an appeal.

Two victories for the visually impaired

In June 2013, the World Intellectual Property Organization finalized the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled. This creates a copyright exception and allows nations to share or make accessible copies in other countries for the print-disabled, who more often than not have little access to reading materials. Before the landmark decision, antiquated international copyright laws made it difficult for developing nations—where 90% of the world’s 314 million blind live—to convert print materials into braille books, audio recordings, or accessible digital files. As a result of the treaty, the diversity of content available to the blind will increase dramatically around the world.

And in September, the Library of Congress announced that those who are blind, visually impaired, or have a physical disability can download audio and braille books to their iPhone, iPad, or iPod touch if they are registered with the LoC’s National Library Service for the Blind and Physically Handicapped (NLS). The Braille and Audio Reading Download (BARD) mobile app, available free through the Apple App Store, allows readers to download audio and braille books from their NLS BARD accounts. Access to BARD is provided through local cooperating libraries. BARD contains nearly 50,000 books, magazines, and music scores in audio and braille formats, with new selections added daily.

“It’s a library in your pocket,” said NLS Director Karen Keninger.

The State of America's Libraries 2014