eBooks: The Implications For Academic Libraries

Paul Whitney Chair IFLA eLending Working Group

Florence, September 2013

Uncertain Times

• Content creation business models in flux

• Library user preferences in flux• Legal uncertainty as national and

international laws adapt to address technological change (or don’t when they should)

• No international norms for technology and content availability

The Ending is Still to be Written

Amara’s Law

We tend to overestimate the short term implications of technology and underestimate the long term implications.

Publishing Sectors

• Scholarly• Trade• Education/Textbook/Professional

Differentiated by content, audience, geographic market, business models...

Scholarly Publishers• Libraries are their market• They hold world rights, negotiate

sales/licence terms and conditions and distribute to their customers

• Product lines are predominately journals and aggregated databases of various types

• Digital products have been part of their product mix for decades

Trade Publishers• Individual consumers are their

primary market for digital (ebooks)• Typically they hold regional market

rights• Sales are usually on a title by title

basis• Digital sales assumed importance in

the last 5 years

What is an eBook?• Downloaded to the reader’s device

(one time not streamed on an ongoing basis).

• Acquired (by an individual or library) as an individual title.

• Generally but not exclusively produced by a trade publisher.

• Licence/purchase terms and conditions are not negotiated.

The eLending Crisis

- the withholding of otherwise commercially available eBooks from library collections - restrictions placed on functions such number of simultaneous readers, printing, inter-library loan and consortia purchasing

The eLending Crisis cont’d

In other words, publishers are now, for some content, determining what is in library collections, how it can be used and and who can have access to it.At the outset this was seen as a public library issue, but increasingly the problems are spreading to academic libraries.

The eLending Crisis cont’d

In the digital licence not purchase world there will be increasing attempts to restrict through digital rights management (DRM):

- specific forms of reuse such as copying and interlibrary loan- consortia purchasing- permanent ownership through time or use limits

The eLending Crisis cont’d“(DRM) causes more problems than it solves and is the latest example of an uncertain publishing industry trying to hold off the effects of changing technology through policy or legislation rather than through adapting to circumstances, recognizing opportunities, and pursuing solutions that grow the market”. D Dillon (2011)

Digital Exhaustion

Will the legal principle of “first sale” which permits the lending and re-sale of physical objects be applied to digital content: i.e. digital exhaustion?The case law is emerging from senior courts: e.g. The EU Court of Justice 2012 ruling on computer software in contrast to the 2001 EU Copyright Directive.

Canadian Supreme Court ESA vs. SOCAN (2012)

There is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet …

Absent evidence of Parliamentary intent to the contrary, we interpret the Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.

The IFLA eLending Principles• Approved by the Governing Board in

February 2013 and subsequently revised in April 2013 and August 2013

• Changes triggered by court rulings and pending challenges (consideration of digital exhaustion in the EU) and editorial tightening of the text for clarity based on feedback.

• With the rules of the game uncertain moving forward, it appears certain the Principles text will continue to evolve.

Background/Preamble“…libraries and their users wish at a minimum to be able to obtain and use an eBook in the same way they can obtain and use a print book.”

The evolving understanding of digital exhaustion:• court rulings• patent applications for digital resale

software

Preamble (cont’d)“…it is necessary for libraries and publishers/authors to agree to reasonable terms and conditions for the library acquisition of eBooks, thus allowing libraries to fulfill their mission of guaranteeing access to knowledge and information for their communities.”

“While we need solutions that support the publisher’s and author’s financial viability, it is not acceptable for a publisher or author to restrict a library’s ability to license and/or purchase otherwise commercially available eBooks for library collections.”

Principles1. A library must have the right

to license and/or purchase any commercially available eBook without embargo.

2. A library must have access to eBooks under reasonable terms and conditions and at a fair price.

Principles cont’d

3. eBook licensing/purchase options must respect copyright limitations and exceptions available to libraries and their users in national law such as the right to:

Principles cont’d

• Copy a portion of the work • Re-format the work for preservation purposes

if it is licensed and/or purchased for permanent access

• Provide a temporary copy of the work to another library in response to a user request

• Reformat a work to enable access for people with print disabilities

• By- pass a technological protection measure for the purpose of exercising any non-infringing purpose

Principles cont’d

4. eBooks available to libraries should be platform neutral and developed with standards for accessibility.

5. Strategies must be in place to ensure the long term preservation of eBook titles by libraries.

6. eBook services must protect the privacy of library users.

WIPO Treaty Proposal on Limitations and Exceptions for Libraries and Archives (TLIB)

Article 5 Right to Parallel ImportationArticle 6 Right to Library Lending and

Temporary AccessArticle 7 Right to Reproduction and

Supply of Copies by Libraries and Archives

TLIB cont’d

Article 8 Right of Preservation of Library and Archival Materials

Article 14 Obligation to Respect Exceptions to Copyright and Related Rights

Article 15 Obligations Concerning Technological Protection Measures

In Conclusion

To the extent that academic libraries collect works also sold to the general public, they will increasingly encounter restrictions on how the works are used and preserved.

In Conclusion cont’d

Different perspectives on access vs. ownership:- from within the library community

- from outside the library community

The Way Forward• Do librarians accept and adapt to the

new reality imposed by rightsholders?“The burden of ownership and the blessings of licencing”

• Or advocate for change?TLIB at WIPONational and regional action on

digital exhaustion and exceptions for libraries (e.g. EBLIDA)

Sources

The IFLA eLending Principles (Aug 2013):http://www.ifla.org/node/7418

The Treaty Proposal on Limitations and Exceptions for Libraries and Archives (Version 4.3/July 2012):

http://www.ifla.org/files/assets/hq/topics/exceptions-limitations/documents/TLIB_v4.3_050712.pdf

William Walters, “E-books in academic libraries”, Journal of Librarianship and Information Studies, Sage, Jan 2013