Promise, progress… and persistent problems: catching up on the situation for eLending in the United States
06 April 2021
The past year has underlined how essential it is for libraries to be able to offer access to content digitally. With major expansion in demand from users, there have been both welcome moves from publishers to facilitate access, but also increasingly clear evidence of underlying challenges in the eBook market that need addressing.
Following interviews with Sari Feldman, Senior Fellow at the American Library Association in October 2019 and April 2020, we caught up with her and Alan Inouye at ALA’s Washington Office to find out about latest developments in the United States.
IFLA: It’s been almost a year since our last interview focused on the eLending situation in the US. Can you give a quick update on the key developments over the last eleven months.
Like every other aspect of library activity, the COVID-19 pandemic has a profound impact on the library eBook issue. The year 2020 began with great uncertainty because of the intense debate on the Macmillan Publishers’ embargo, exemplified by CEO John Sargent’s appearance at the ALA 2020 Midwinter Meeting & Exhibits. With the rise of the pandemic, Macmillan ended the embargo in March and soon after, John Sargent resigned as CEO.
As libraries struggled to provide relevant content online to replace in-person service, questions about fair use and copyright were particularly concerning to story time presenters and live reader services for children in schools and public libraries. Major US publishers extended rights to librarians, teachers, educators, and others providing a learning platform with read-a-loud presentations, blanket permissions to read their books live and to upload recordings to closed education channels. Penguin Random House (PRH) and Simon & Schuster (S&S) have recently extended permissions to continue this important early childhood programming.
Sharing digital collections between schools and public libraries took on new value during the pandemic. Many school districts lack rich, curated collections of eBooks required for remote learning. Follett/Baker and Taylor and OverDrive are among the platforms that have expanded and enhanced the ability of students to borrow eBooks and audiobooks from their local public library’s digital collection in addition to the books from their school library without compromising student privacy.
Libraries have increasingly shifted collection development dollars to support increased demand in digital collections. Publishers kept pricing stable or increased flexibility in licenses, enabling budget dollars to go further. For example, PRH offers one-year licenses for eBooks and digital audio at a 50% prorated price (from the two-year license). HarperCollins added frontlist and eBook backlist titles to its cost-per-circulation model and discounted pricing to an additional selection of titles. OverDrive donated special collections of “Black Lives Matter” titles and other collections of simultaneous use eBooks and audiobooks.
Despite the many positive notes in publisher and library relations, fundamentally, the challenges with library eBooks remain the same. The library community and publishers do not agree on what constitutes appropriate terms, and libraries lack the baseline access and preservation rights they enjoy with analog content.
Initiatives in public policy took place in several states and nationally. In New York State, legislation was introduced that would give libraries the right to purchase digital content when it is offered to the general public. Rhode Island introduced similar legislation and U.S. Rep. David Cicilline (D-RI-1st District) participated in a discussion on library eBook challenges. In the fall, the House Judiciary Committee completed its investigation of competition in digital markets (under the leadership of Rep. Cicilline), setting the stage for legislation for the public interest in the 117th Congress. Connecticut has recently opened an antitrust probe into Amazon over its eBook distribution agreements and California and Washington also have active investigations into Amazon.
In March 2021, the Maryland legislature became the first state to pass legislation in a chamber that would ensure libraries can license eBooks and other digital reading content available in the retail market. The House and the Senate in Maryland passed the bill unanimously and it is expected that Maryland’s Governor Larry Hogan will sign the bill. This is a very exciting achievement and will set precedent and a model for other states to follow suit.
And we’ll see the next steps in the lawsuit on controlled digital lending and PRH’s acquisition of S&S. While the purchase of S&S by Bertelsmann, PRH’s parent company, may come with some concern and controversy, it may well go though. There are probably lively discussions at the U.S. Justice Department, but PRH could maintain the relative independence of an S & S imprint. The biggest threat for libraries and consumers really comes from Amazon, the true behemoth in the publishing industry.
Traditionally, it was bookshops and publishers who worried about Amazon. Why are libraries increasingly concerned?
Amazon has increasingly become the exclusive publisher of eBooks from many best-selling authors including Dean Koontz and Mindy Kaling. Like its exclusive downloadable audio through Audible, Amazon exclusive eBooks are sold to consumers but not to libraries. As Amazon signs more authors and audio rights deals, library customers will be denied access to the digital works produced by Amazon. Amazon has created a large digital collection of self-published books as well and those are not available for library sales. The inability of libraries to negotiate for content with Amazon will only increase as Amazon aggressively pursues content. Libraries must oppose this inequity of access and seek solutions that support the library values of access to information.
How big a player in the publishing world is Amazon now?
In the last decade, a major development is Amazon’s growth as a publisher in its own right to supplement its role as the dominant distributor & retailer of books (whether physical or digital)—as well as practically everything else. It was only a handful years ago that few people thought of Amazon as a significant publisher. Currently, data on this question are difficult to come by, but our general assessment now puts them in the top tier, which means there are the Big 6 again in the U.S. with the inclusion of Amazon. More important and concerning is Amazon’s upward trajectory as a publisher, coupled with its dominant distributor and retailer position.
What reasons do they give for not making books available to libraries?
In speaking about its decision to work collaboratively with the Digital Library of America in a recent article, Mikyla Bruder, the publisher at Amazon Publishing sent an emailed statement, “It’s not clear to us that current digital library lending models fairly balance the interests of authors and library patrons. We see this as an opportunity to invent a new approach to help expand readership and serve library patrons, while at the same time safeguarding author interests, including income and royalties.” (Fowler, Washington Post, March 10, 2021)
Do these stand up to closer inspection?
There may be a positive first step in developments with Amazon, which is in talks with the Digital Public Library of America to provide library access to some Amazon-published eBooks. This is the first sign of movement from Amazon. While a promising start, it is just a start. The library community must maintain focus and advocate for full access to Amazon published eBooks and digital audio works.
Big tech is facing increased antitrust pressure in Congress and Amazon’s good will gesture may be one attempt to reduce its monopoly on eBook distribution and a growing eBook publishing business. We will be watching Amazon’s reaction to the Maryland legislation to determine a future advocacy strategy in other states poised to take legal action to gain equal access for libraries to purchase content.
What impact do these claims have on the wider debate about eLending?
In the U.S., the other big publishers make their eBooks available to libraries, albeit through terms the library community doesn’t find satisfactory. Amazon’s recalcitrance stands out and reinforces the reality and perception that the company is abusing its market position. In the U.S. government, there is an ongoing and intensifying debate and concern about Amazon’s power and evolving consensus that something needs to be done in terms of legislation and public policy.
Of course, this problem of basic access to digital content extends beyond books—it applies to movies, music, and other media. Visibility of the library eBook issue may also be leveraged to other market segments in which libraries and the general public are being disadvantaged.
What benefits could there be for Amazon and its authors in enabling library lending?
We encourage Amazon and its authors to realize the many benefits of library eBook lending—as enjoyed by the Big 5 publishers and their authors. Libraries provide direct revenue—yes, we pay for eBook access when we are permitted to do so. And a recent study from the Panorama Project (https://www.panoramaproject.org/news/2021/2/10/panorama-project-releases-immersive-media-amp-books-2020-research-report) finds that library eBook lending is good for the publishers’ business.
Libraries provide defacto free marketing for publishers’ titles and authors. Books are displayed in libraries or online. Libraries host author talks. Libraries recommend titles. More broadly, libraries sponsor and organize reading events, such as summer reading programs and book clubs. Most fundamentally, libraries provide literacy classes and tutoring and are the strongest promoters for literacy in communities.
Libraries do not showcase titles that it cannot obtain itself.
There are already efforts at State-level to address this situation – could you imagine such laws being adopted elsewhere in the country, or even at federal level?
Yes, we are supportive of other state-level efforts. At the federal level, the effort really began in the fall of 2019 when ALA was invited to submit comments to the U.S. House Judiciary Committee. The COVID-19 pandemic and its implications understandably slowed down focus on this issue in Congress. However, there is now an even heightened focus on Amazon and the library eBook issue. With the new Congress, there is a new champion in the U.S. Senate as Sen. Amy Klobuchar (D-MN) became the Chairwoman of the Subcommittee on Competition Policy, Antitrust, and Consumer Rights of the Senate Judiciary Committee. She is also a strong critic of Amazon’s market power and its abuse in multiple market segments. We are optimistic of further progress through 2021.
You mentioned the law under discussion in Maryland – what should this mean in practice?
We are cautiously optimistic that the Maryland bill will become law this spring. But its passage is only the beginning. There will, no doubt, be differing views for what “reasonable terms” means. How that debate unfolds remains to be seen. It is possible that there will be a legal challenge to the new law, as there is some lobbying against the legislation. Nevertheless, the overwhelming support in the Maryland General Assembly from both Democrats and Republicans is quite reassuring that the bill reflects common sense “Main Street” perspectives.