“Let Libraries Lend E-books” – an update on e-book campaigning and EU copyright reform

Building on the European Bureau of Library Information and Documentation Association’s (EBLIDA) “E-books in libraries campaign”, which ran between 2012 and 2013, “The Right to E-read” campaign is aimed at raising awareness amongst the general public, librarians and policy makers about the difficulties libraries, especially public libraries, are currently facing with regard to acquiring and lending e-books.  Led by EBLIDA – and branded in the UK as “Let Libraries Lend E-books” – the campaign is also calling for changes to the EU’s copyright framework, because the difference in treatment of printed and e-books stems from copyright law.  Earlier this year I gave an overview of this legal position and the campaign to reform it (click here).  Below is an update of activities and developments since that blog was posted.

E-reading Day
The focal point of the campaign so far has been the E-reading Day on 23 April, the UN’s World Book and Copyright Day. Many national professional associations, including CILIP, marked the day by issuing a press release highlighting the challenges public libraries are facing.  With the help of Shelf Free members Helen Leech, Gary Green and Jon Scown we were able to include new statistics on e-book lending – of the 50 most borrowed print books from libraries in February 2014, 45 have been published in e-book format but only 3 of these have been made available to libraries.  Click here for the press release, which includes links to infographics illustrating the current situation.

E-lending Petition
April 23rd also saw the launch of a European-wide petition calling for changes to copyright law so public libraries have the same right to lend e-books as they do printed books.  At the time of writing this petition has almost 15,000 signatories.  It is still open and we urge you to add your signature.

EBLIDA’s Right to E‐read Position Paper
In May EBLIDA published its revised position paper on e-book acquisition and lending and made two overarching recommendations:

Firstly, “Mandatory Fair Licensing” to ensure that each and every e-lending model fully accommodates libraries’ missions and needs by:

•    Including licence terms and conditions that do not undermine statutory exceptions and limitations to copyright law permitted within the EU or its Member States.
•    Making compulsory the removal of technological protection measures for all legitimate uses.
•    Preventing publishers from refusing to sell digital content to libraries, imposing or limiting which titles they may acquire, or making any prohibition on library e-lending.
•    Ensuring that e-books and other digital content is offered to libraries at reasonable prices.
•    Mandating that licence terms and conditions support libraries’ missions and activities.
•    Guaranteeing that licences follow EBLIDA’s key principles on the acquisition and access to e-books

However, EBLIDA does not believe that licensing initiatives alone are enough to ensure freedom of access to knowledge through our libraries.   They also recommend that the European Copyright Acquis be updated to ensure that:

•    Provisions are introduced into copyright law to prevent contract terms from undermining statutory exceptions and limitations permitted within the EU or its Member States
•    The removal of technological protection measures is made compulsory for all legitimate uses.
•    Libraries are granted a ‘right to acquire’ any work legitimately made available to the public (including the right to acquire digital files) so that transfer of ownership takes place and the principle of exhaustion applies.
•    A new mandatory exception is introduced granting libraries the ‘right to lend’ (including ‘e-lend’ remotely) any work in any format.

Download the Right to E-read Position Paper

EU review of copyright rules
In December last year the EU launched a consultation in an effort to gather views on how to modernise the existing EU copyright framework.  The consultation spanned 80 questions and covered a broad spectrum of copyright law, looking at areas where copyright inhibits cross-border provision and the functioning of the (Digital) Single Market.  There were a series of questions on e-book lending and in March EBLIDA, LACA (the Libraries and Archives Copyright Alliance, which is convened by CILIP) and Shelf Free submitted evidence of the problems currently being faced and called for an exception to copyright law to allow libraries to purchase e-books for lending, and also for the EU to confirm whether the principle of exhaustion applies to sales of digital materials (for an explanation of the principle of exhaustion please see my previous post).

The consultation attracted 11,117 responses and will inform a European Commission (EC) White Paper examining whether and how further action on the current system of rights, their licensing and exercise, the exceptions to rights and their enforcement is warranted at EU level.  The official White Paper is not expected until the autumn, but a leaked draft suggests the EC is taking a cautious approach to reform, including e-lending.  The draft states that “policy initiatives on the exhaustion principle would seem premature at this stage” and that “further observation of how licensing models and technologies evolve” is necessary, as well as “extensive assessment of the consequences that initiatives in this area could have on digital markets”  (p7).  We’ll have to wait until September to find out if the official version is more ambitious.

What next for the EBLIDA campaign?
•    At a European Level the main emphasis is currently on getting people to sign the petition. The EBLIDA Executive Committee will be meeting in Brussels in late October and intends to present the petition to the EU Commission.
•    CILIP has plans to lobby members of the devolved parliaments/assemblies on the issues in September and will also lobby the new UK MEPs later in the year.   We are also exploring possibilities of lobbying relevant local Councillors (Leaders of Council, Cultural Services portfolio holders etc).
•    The EU Copyright White Paper, when published, will form another focus for campaigning.

Updates will be posted on this blog and on the CILIP website.

The Right to E-Read

Did you know that, unlike with printed books, libraries do not have a right to lend e-books?   And did you know that, unlike with printed books, only a small number of e-book titles are made available to libraries?   Most people do not know this, and are astonished to find out.  Libraries should have a right to e-lend because everyone deserves the right to e-read.  EBLIDA, the European Bureau of Library Information and Documentation Associations, agrees and has launched a Right to E-Read campaign.

Why are printed books and ebooks treated differently?

The difference in treatment of printed and e-books stems from copyright law, where lending constitutes a subgroup under the category of “distribution”. The rights holder has exclusive control over whether to publish or not, but after the first sale the distribution right is exhausted. This is known as the “first-sale doctrine” or “exhaustion doctrine”. Once exhausted, the rights holder, often publishers, cannot control subsequent lending or re-sale of the physical object. As a consequence, the library decides what books to buy and use for lending and how long to keep the books for.  And it’s not just libraries that rely on this right of exhaustion, it underpins the secondhand book trade too.  Without it, if you wanted to sell your unwanted books to your local bookshop, or offer them for sale on Amazon, you’d need permission from the publisher first.

In their interpretation of European copyright law publishers and some legal scholars claim that e-books are “communicated to the public” rather than distributed, that communication to the public is a “service” and the exhaustion doctrine does not apply to services. As a result the library can only acquire an e-book by entering into a contract with the rights holders and rights holders are free to decide whether they want to give access to a specific work, and to decide on the terms of such access. This means that the library cannot loan e-books without permission.  It also means that libraries are tied into long-term subscriptions to aggregator services to prevent e-book titles being lost. And it’s not just library e-books that are acquired under licence.  Did you know that when you “buy” an e-book, you aren’t “buying” it in the traditional sense, you are actually buying a right to access it with terms and conditions attached?    Although there are challenges to this interpretation in the European courts, the position may take years to resolve.

Why does this matter?

Libraries have to rely on publishers being willing to grant them licences to lend e-books, but some are refusing to do so, or are demanding unacceptably high prices and terms. Research conducted in February 2013 by Shelf Free found that 85% of ebooks were not available to public libraries.   Out of the top 50 most borrowed adult fiction books of 2012, only 7 were made available by publishers for libraries to e-lend – and even then it depended on which supplier the library service was signed up to. With one supplier, only two titles were available.  Public libraries promote literacy and foster a passion for reading and so, as e-lending looks likely to become a major form of lending, they must be able to provide a wide range of digital content to the communities they serve.  Not to cater for the increasing demand for e-books will turn libraries into museums of the book.

Why are publishers withholding titles?

Some trade publishers view e-lending as a threat to their business, arguing that if people can borrow an e-book, why would they buy one?  We agree that publishers are entitled to a reasonable return on their investment and we understand why some are cautious of digital distribution.  However, rather than damaging sales, available research shows that libraries enhance sales and are important customers for publishers.  A 2011 study reports that 50% of all library users in the USA report purchasing books by an author they were introduced to in the library, for example.

The ongoing e-lending pilots, initiated as a result of the Sieghart Independent Review on E-lending, will enhance our understanding of the dynamics of e-lending, including the impact on the e-book market, and are very welcome. However, they are predicated on a licensing solution which will leave the power with publishers. This threatens the mission of public libraries to provide access to knowledge and works of the imagination, and gives publishers undue influence over the collection development policy of library services.

A right to e-read?

What is required is a change to European copyright law to enable libraries to purchase and lend e-books. This is at the heart of the European Bureau of Library, Information and Documentation Association’s (Eblida – www.eblida.org/) Right to E-read campaign, which was launched in May last year.  The campaign focuses on:

  • Raising awareness in the professional library and information community, so that they become advocates of change
  • Alerting politicians and members of the public to the situation, so that they support such change
  • Directly lobbying the EU for this change.

The focal point of the campaign is an E-reading Day on 23 April, the UN’s World Book and Copyright Day. The aim is that all national professional associations should issue a press release on the Right to E-Read campaign and, if possible, organise events on the day.

Shelf Free and CILIP, the Chartered Institute of Library and Information Professionals, are getting behind this campaign.  We are calling for a fairer copyright framework that enables libraries to lend and at the same time provides reasonable remuneration for publishers and authors – both Shelf Free and CILIP are supporting authors in their campaign to extend Public Lending Right to e-books loaned by libraries remotely, which also requires a change to EU copyright law.

If you want to become an advocate for change so that everyone has a right to enjoy and benefit from the e-books provided by libraries, please get behind the Right to E-read campaign.  The EU Commission has announced a review of copyright law this year, so the time to campaign for these changes is now.  Supporting material and further information is on the CILIP website at: bit.ly/1fsPl76

Yvonne Morris, Policy Officer, CILIP: The Chartered Institute of Library and Information Professionals