The article translated into Japanese ( https://current.ndl.go.jp/ca1979 )
No.344 June 20, 2020
European Libraries and eBooks – RIP the public library as we know it?
The realities of eBooks in libraries continue to be challenging in Europe. Although for young people eBooks have always been part of their book ecology it is worth remembering that they are only a relatively new phenomenon. Digital books first started being made available between scientific publishers and research libraries within a few years of the internet’s public adoption in 1994. e.g. Elsevier’s Science Direct was launched in 1997(1). However eBooks aimed at consumers took around a decade and more after that to start being made available from public libraries in Europe.
Whereas libraries started to digitise and make available across the web their collection items in the 1990s (often manuscripts and not books) it wasn’t until the late nineteen nineties / early 2000s that eBook readers began to appear for sale aimed at consumers. This author remembers looking quizzically at eBook readers on display at the Frankfurt Book Fair around this time, and wondering who would want to read anything but a paper book. The limited amount of material available at that time to read on the eBook readers also played a part in their lack of popularity. The vendors soon after disappeared from the Book Fair. It wasn’t until 2007, when Amazon launched Kindle in the US, and then two years later in Europe(2) and other parts of the globe, that the potential for eBook loans from public libraries really began in earnest to be entertained.
Today we see a very mixed picture across Europe in respect of the availability of eBooks from public libraries. Whereas in some countries such as Denmark those involved from the library sector now seem relatively content with the selection of eBooks they can license from publishers, in others the offering to library patrons is said to be very limited indeed. e.g. Hungary and Romania. This article explores the experience in a number of countries across Europe, and explores some of key themes and concerns faced by the European library community.
Overall, even in the countries that now have relatively good eBook offerings this has not always been the case. In 2012 the Swedish Library Association (SLA), frustrated with the lack of engagement from the Swedish Publishers Association on the issue of lending eBooks, launched a campaign aimed at the government entitled “Say hello to your new librarian”(3).The campaign was launched on the island of Visby during the annual politics week in Sweden at the start of July, where all the political parties gather to give speeches and enter into debate. That year 17,000 people were in attendance including politicians and journalists(4).
The cover of the booklet accompanying the campaign shows a stern and off-putting businessman in a suit looking out at you. The message was a clear one – libraries were no longer free to buy and lend any book they wanted; they were becoming little more than a route to market for the eBooks that publishing businesses chose to license to them. Moreover, it underlined that libraries were having to wait for months until popular titles were made available for libraries to lend to patrons. Even then titles could be withdrawn with no notice(5).
The problem was a serious one. At the time the number of eBooks available for libraries to lend in Sweden was approximately 5000, dwarfed by countries like America which at the time had around a million electronic titles available from public libraries. Furthermore, Swedish libraries were paying publishers 20Kr (225 yen) per loan, the high cost forcing them to have to ration the number of loans allowable.
The Swedish Library Association took aim at flat pricing models, arguing that prices should fall over time as titles became less popular. They also made the case for a flat subscription model to all eBooks available from Swedish publishers, arguing that the role of libraries is to promote all types of books, not just the more popular titles. By raising issues such as the gap between eBooks on sale to consumers and libraries, and how the publishers’ pricing models were at odds with the role of a public library system to promote all types of literature irrespective of its commercial potential, the SLA sought to defend some of the core functions, principles and values of libraries and librarians. The fact that the campaign was launched in Swedish and English indicates that the Swedish library community were aware the issues they faced were common across the globe.
Since this campaign pricing models have improved with costs dropping as books get older, but as of 2016 prices per loan remained high, varying from 5Kr (56.25 yen) to 20Kr (225 yen)(6). In this sense, irrespective of whether all titles available to consumers are now available to libraries or not, the high cost of loans still acts as a disincentive to libraries to make available the newer eBooks. Libraries continue to ration eBook loans given the cost per loan. From a library patrons’ perspective, disincentives to borrow eBooks because of a limited range of titles available, combined with technological issues such as the need to download multiple apps, have meant that libraries have not been able to contribute fully to eBook reading, arguably impeding the growth of eBook reading in Sweden as a whole(7).
Netherlands and the European Court of Justice
Although similar supply problems existed and continue to exist all across Europe, it was not availability or pricing but copyright law related issues in the Netherlands that were the focus of Dutch libraries there for a number of years. Ultimately this led to the issue of eLending being addressed by the European Court of Justice in 2016.
The background to the case relates to a study undertaken by the University of Amsterdam which was commissioned by the Dutch Ministry of Education, Culture and Science. The study concluded that it was not lawful for Dutch libraries to lend eBooks under existing EU copyright law without seeking authorisation. The law in question is the Rental and Lending Directive (92/100/EEC), and its subsequent amendments(8), which allow public libraries in Europe to lend books to members of the public, in return for public lending right payments being paid to authors, if deemed appropriate at the Member State level.
Based on the legal finding from the University of Amsterdam, the Dutch government then proceeded to draft a law for the creation of a digital library lending platform based entirely on the licensing of eBooks from publishers. In response to this the Dutch Library Association (Vereniging van Openbare Bibliotheken) decided to challenge the legal premise of the new law through the Dutch courts, who ultimately referred it to the Court of Justice of the European Union (CJEU). In essence the Dutch Library Association asserted it was already lawful for libraries to lend any eBook available in the market place in line with the existing Directive, with no amendments to the law being required.
The final 2016 verdict(9) in the Vereniging van Openbare Bibliotheken v Stichting Leenrecht case was in favour of the Dutch Library Association with the court ruling that the Rental and Lending Directive should be interpreted in sync with developments in technology, rather than being restricted to an analogue-only interpretation. In other words, the Directive did not need to be updated in order to allow libraries to lend eBooks under the law because it was already allowed.
The judgement therefore would appear to make it permissible for libraries to lend to members of the public any lawfully acquired eBook available on the marketplace – whether licensed to consumers or to libraries, and potentially even those digitised from an analogue book. The ruling itself does not refer to how libraries acquire the books, but does require they are acquired lawfully and are downloaded from the library servers on a one copy, one user basis in order to mimic the loan of physical books. Without dealing with the acquisition of the book by the library, important issues and questions therefore remain.
- i) how a library would technically lend eBooks aimed at consumers that are protected by technical protection measures on publisher platforms;
- ii) what the relationship would be between the decision of the CJEU regarding the lending and the licences offered to consumers that do not allow lending;
- iii) whether libraries could digitise books to make them available from their servers on a one copy, one user basis.
In spite of the lingering questions, it was for libraries and their patrons a landmark decision. The ruling could have opened up new opportunities for public libraries willing to proactively use and build on the ruling to either launch their own services, by digitising and then lending digitally on a one copy one user basis (as we now see in the US from the Internet Archive(10) using a technical protection measure called “controlled digital lending”), or by bringing the full force of the ruling to bear in negotiations with publishers.
This however appears not to have happened to any real extent. This author is unaware of any European-based controlled digital lending service having been launched under the aegis of the ruling. Given that libraries still see time-limited embargoes, large publishers such as Hachette (see below) all but refusing to sell to libraries in some countries, as well as the ongoing gap between books available for libraries to lend and those available for consumers, the library profession in Europe could arguably have done more maximise their own interests as a result of this landmark case.
As just one example even in the Netherlands, lending from libraries still relies entirely on licences from publishers. Whereas in 2018 the numbers of eBooks available from libraries had increased, in part due to more money from the Dutch government, significant time lags of six to 12 months in being able to lend eBooks remained(11). Whereas the court ruling may have put pressure on Dutch publishers to work more closely with libraries, the increase in books available for loan could equally be attributable to publishers naturally increasing the number of books available to public libraries as they become more sure of their own business models. Certainly this same trend of increased availability is seen across all the other countries referred to in this article.
United Kingdom – Ignoring the European Court of Justice
The UK was one of the first, if not the first country in Europe to legislate so that authors would receive public lending right payments (PLR) from loans of eBooks via public libraries in line with the Rental and Lending Directive. In 2010 as part of the Digital Economy Act, UK law was amended so that, subject to secondary legislation (which passed 7 years later in 2017), authors would receive payments for every loan of an eBook and audiobook.
From a public policy perspective this is particularly interesting for a number of reasons. Firstly the issue of double payment for authors was not very much discussed at the time. Based on discussions this author had at the Frankfurt Bookfair it was being reported by publishers that well established authors were using the opportunity of publishers having to renegotiate rights for eBooks as a chance to get a higher percentage of royalties than was the case with paper books.
This may indeed be the case as whereas the average author will generally receive slightly less than 10% of net receipts for hard copies of books(12), on eBooks authors have been encouraged to negotiate an even 50/50 split with publishers on net receipts(13)(14). It would therefore appear that UK authors are receiving not only PLR payments from the Department for Digital, Culture, Media and Sport (DCMS), but also receiving on average higher net receipts from publisher commercial activity relating to eBooks. Whether this is an intentional cultural policy or not remains unclear due to a lack of public debate on the issue.
Secondly as stated above secondary legislation implementing PLR payments for authors was finally passed in 2017, the year after the CJEU case ruling. This was significant because in spite the ruling that libraries could lend eBooks on a controlled lending model, the legislation(15) ties libraries to lending which “is in compliance with any purchase or licensing terms to which the (e)book is subject”. Given that terms and conditions accompany all eBooks, this wording is tantamount to a rejection of the landmark CJEU ruling, tying UK libraries into only being able to lend eBooks which publishers chose to license them.
Library organisations involved in discussions on the legislation with DCMS and the Society of Authors (represented by their CEO, a former professional lawyer) included the British Library, Libraries Connected (formerly the Society of Chief Librarians) and the UK Library Association (CILIP). The agreement by library organisations to allow publishers to limit the ability of libraries to lend any eBook in spite of the CJEU ruling, now fixed into UK copyright law, will be very difficult indeed to reverse any time in the near future. This situation represents a significant undermining of a library’s traditional rights and freedoms – moving from being able to purchase any book in order to lend it to members of the public, to now being limited by the law to lend only the eBooks which publishers chose to allow them to license.
How significant this change in terms of readers’ experience will depend on the size of the gap between what a library would be able to buy and lend without restrictions, and what publishers decide to make available, at a price and on terms and conditions that work for libraries.
An important recent study by Monash University into eBook lending by UK and other public libraries gives a snapshot of the availability and accessibility of eBooks(16). The study sampled the availability of 546 eBook titles identified as being of particular interest to public libraries across different English language jurisdictions – UK, Canada, New Zealand, Australia and the US. The UK had the lowest availability of any country surveyed with only 59% of the titles available from public libraries. The authors note that “The poor availability outcomes in UK libraries may be tied to their current extreme funding pressures, with some 25% of British public libraries closed or handed over to volunteers since 2012.” “The aggregator from which the international data was sourced also noted that it has found UK publishers to be more risk-averse than their counterparts elsewhere, which might further explain an unwillingness to make books available for e-lending.” Similarly a larger sample of nearly 100,000 titles eBooks in a second study from Monash University also found that the UK had the lowest levels of availability of eBook titles at 77.5% when compared to the other countries surveyed(17).
The Monash study(18) also shows that of the big five English language publishers, only four of them distributed eBook titles widely on different library platforms. Of the 546 titles sampled, 97% of them were available from at least one library platform. Hachette however stands in marked contrast to the other four large English language publishers in regards to titles available for electronic lending by public libraries. Of the 50 Hachette eBooks sampled only four (8%) were available on library platforms to lend, and never on all library platforms.
Not only has the UK been found to have the lowest number of eBooks available amongst these four large English language markets, it also was found to have the highest average cost per loan(19). In conclusion the study summarises the situation in the UK saying “Overall, the UK has the least attractive licence terms, the highest prices, and the lowest availability.”
These findings therefore bring into focus the ramifications of the decision in the UK not to use the CJEU ruling as a way to push for better copyright laws that would help libraries develop comprehensive eLending models. The reasons for this can only be surmised but it does underline the importance for the global library community to invest in legal and policy activities and expertise. This stands in marked contrast to the publishing industry’s relatively high levels of investment in this area. This lack of focus on copyright and legal policy has arguably left the community and the public in a worse position regarding eBooks than would otherwise have been the case.
In sharp contrast to most other countries, the CJEU ruling was widely discussed at the policy level in France. Whereas the then French Minister of Culture, Françoise Nyssen, rejected out of hand introducing an exception into French copyright law for eLending(20) the French Library Association (l’Association des Bibliothécaires de France) has been consistently vocal on the lack of availability and appropriate models for making eBooks available from public libraries.
In June 2019(21) the ABF President Alice Bernard at the annual library congress attended by the French Minister of Culture, publicly bemoaned the lack of developments around electronic lending for libraries pointedly asking “Are we going to continue to deprive readers of all publisher outputs?”. This came off the back of a public letter in January of that year to the President of the French Publishers Association signed by a number of different French library associations(22). The letter, while acknowledging the importance of the digital library loan system in place in France (PNB), criticised the limited offering of eBooks available to public authority run libraries. It also raised the fact that the pricing did not work for small and medium-sized libraries, and that the poor quality of the metadata provided by the publishers hampered discoverability of eBooks.
In an interview(23) in 2017 the former ABF President also pushed back on the French Minister’s rejection of amending copyright law in line with the CJEU ruling to allow libraries to lend eBooks. He argued that even if the licence models of offer worked for small, medium and large libraries (which was not the case), the fact that only 52% of eBooks available on sale to consumers could be borrowed from a public library meant that the status quo was fundamentally not working for French libraries. Growth in the number of eBooks available for eLending was reported to have stagnated with key publishers’ books being missing(24).
Wanting to find a practical solution to provide access to eBooks, French libraries had even been buying eBook readers, downloading books to them, and lending the readers themselves to members of the public.
The importance of guaranteeing authors a stable income from public lending right payments was also emphasised by the ABF as one of the important reasons why eLending should be encouraged. This is an important policy issue. Whereas the most famous authors have diverse income streams, away from the bestsellers, less well-known authors do generally receive real financial value from their PLR payments, and appear to generally value these payments(25).
At the time of writing Denmark appears to have one of the best offerings of eBooks through public libraries, though even the history of eBooks there is a chequered one. The Danish libraries’ eBooks platform (eReolen) was established in 2011, co-funded by a number of public libraries in Denmark alongside the Agency for Culture and Palaces. Using a pay-per-click model, its uptake was extremely rapid as multiple patrons were able to access the same title simultaneously. By the summer of 2012 it had 4,200 titles available with 88,000 loans and 41,000 unique users (0.75% of the Danish population)(26).
Its popularity however rapidly led it to be a victim of its own success, with the seven largest Danish publishers all withdrawing from the platform late in 2012 citing the success of eReolen as impacting negatively on their sales. This reduced overnight the number of titles available on the platform by 60%(27). To make matters worse, due to security breaches, in 2013 eReolen was reconfigured so it could only be used using a platform-specific App, something library patrons reacted extremely negatively to.
Following the withdrawal of the seven largest Danish publishers from eReolen the publishers established their own platform aimed at library users called EBIB, employing a one-copy one user model. This frustrated end-users who were used to the previous instant access model. Discoverability of titles on the platform was also poor, and in 2014 the smaller and medium-sized libraries(28) that had subscribed to EBIB decided to terminate their subscriptions to the service. Given the virtual collapse of the publisher platform EBIB, libraries commenced negotiations again with the larger publishers and reached a compromise business solution with them, meaning that by January 2015 offerings from the largest publishers were again available from eReolen.
In order to get the larger publishers back on board with eReolen the libraries agreed that for the first six months, publishers if they so chose, could make eBooks available on the platform on a one copy one user model. After six months however, access then changed to a one book multiple users model, though even this was not an absolute requirement. On the relaunch of the service usage increased dramatically, again prompting some of the largest publishers to withdraw from the platform late in 2015. This time however the second largest publisher remained, meaning the offering to members of the public fell less than it had in 2012(29).
This boycott of the platform continued until 2017 when as a result of the CJEU case the Danish Minister of Culture threatened publishers with legislation around eLending. This then led to the large publishers renegotiating agreements with eReolen and as of today other than a few small and medium sized publishers all Danish language publishers have titles available on eReolen.
Currently the platform operates three lending models depending on the book, catalogue or publisher – a one off time-limited subscription for access to an entire catalogue, one copy one user model, and one copy multiple user model. The model where publishers transition from one copy one user to one copy multiple users after 6 months has now been replaced with a model where no more than 40% of the titles from a particular publisher should be available under one copy one user. It is estimated that of all eBook titles available in Denmark approximately 60% are available from the platform – with the remaining 40% being a mix of titles withheld by publishers and titles that libraries do not want to licence. In 2017 there were 256,000 unique users which in 2018 rose to 535,000 users equating to circa 10% of the Danish population(30).
The stop-start we see with the development of eReolen tells in part a story of a publishing industry unsure of the best way to sell eBooks to consumers, as well as an uncertain and ambivalent attitude towards library lending. The intervention of the Danish government in 2017 after the CJEU ruling to force the issue with publishers is from a policy perspective significant. Not just in this case, but time and time again in different situations European publishers can be seen to positively respond to access and copyright problems when threatened with copyright reform by government. The important role of government can also be seen in the Danish case as it was a combination of investment by public libraries and the Danish Agency for Culture and Palaces that established eReolen in the first place.
eLending and Research Libraries
Whereas eBooks first started off being available in the second half of the 1990s through research libraries (universities, national libraries etc) the focus of the debate has generally focussed in Europe on the struggle by public libraries to get access to eBooks. Another important aspect of the eBook “problem” however is one of interlibrary loan.
Whereas a university or a national library will often loan out physical books to other libraries for their patrons when a title is not held locally, this is usually not possible with an eBook. Technical protection measures prevent a library from loaning an eBook that is either purchased or acquired (for example via legal deposit). When an electronic title cannot be loaned from one library to another this leaves only two options to the researcher – either travel to the library where it is held, or do not refer to the title concerned as part of the research being undertaken. Clearly neither choice is desirable. Without strong intervention by libraries on this issue, which seems unlikely given the library community’s weak response on eBook legal policy issues generally, or government intervention, it seems access to eBooks for research purposes will continue to be much more limited in comparison to paper books.
The need to travel to the library to access eBooks in the age of the internet when it wasn’t needed before for analogue books, is just one of the many upside-down access related issues that the advent of the internet has spawned.
Digitising eBooks to Lend – The Optimal Model?
Given the numerous access problems facing libraries in regards to eBooks, one solution would be for libraries to take control of the entire end-to-end process of digital lending. As outlined above, the Internet Archive in the US, asserting the US copyright doctrine of fair use, works with libraries to digitise paper books and then lend the digital copy using technical protection measures which limit the number of simultaneous loans to the number of analogue copies of books they possess in their collection. The system is operated across their own digital platforms so the loan and “return” of the item is controlled by their own technologies. Such technologies are in no way unique. The British Library’s document supply service has since 2003 been using technical protection measures to supply on a time limited basis the electronic delivery of articles to specific end users(31).
The advantages of such an electronic lending system are that it can be controlled securely in one place, and is easy to understand and if challenged, easily auditable. It also allows a library to purchase and lend electronically any book it chooses – something no single European country has been able to achieve.
One of the criticisms from some within the library community in Europe of the VOB v Stichting Leenrecht ruling was the limitation of electronic lending to the same analogue paradigm – namely one book, one user, one loan. Whereas the technology will allow multiple models for lending books, in terms of a basis in law from which to work from it would appear to be a pragmatic and easily understandable solution that could, if introduced into European copyright law, form the basis of a basic standard that could be improved upon subject to appropriate further licences and PLR payments.
eBooks have raised many challenging access issues for both members of the public wanting to loan eBooks via public libraries, as well as for researchers wanting to access eBooks from university and national libraries when they do not have access locally. We see across Europe libraries struggling to achieve wide coverage of titles, with time embargoes not being uncommon. Concerns over pricing, and the share of payments received by authors are also widely expressed by the library community. The shift from copyright law regulating library loans to licences has been a challenging one, and explains the often very large gaps that exist between the number of eBooks available for people to purchase and those they can borrow from a library. In spite of the landmark case at the Court of Justice of the European Union, it would appear the ruling has been largely ignored by the leaders of Europe’s public libraries. This means that libraries are now almost entirely dependent on publishers’ choices as regards if, what, when and how to license eBooks for their collections. The rights and freedoms that exist for libraries in regards to lending paper collection items still continue, but eLending for now operates within a different paradigm – one almost entirely governed by the business decisions of publishers, not the missions of libraries. As the Swedish Library Association stated in 2012, “Say hello to your new librarian”.
Benjamin White, The Centre for Intellectual Property Policy & Management, Bournemouth University
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