Rent NOT to Own: Copyright, Licensing, and the eBook Revolution : 2021 Miami University Libraries Copyright Conference

By the way, this is the fourth interaction of their copyright conference. They have over 160 people registered for the conference this year, including people from outside the United States.

This session was on Sept. 28.

 

Presenter: Kyle K. Courtney

 

Description: Copyright, licensing, and eBooks are destroying core access, collection development, and preservation activities in libraries, archives, museums, and other cultural institutions. Nearly all the major publishers charge libraries higher licensing fees than the consumer prices for the same material, and place strict limitations on how the licensed content can be shared or loaned. And each license does not confer any ownership under copyright’s first sale doctrine – these eBook deals, at best, are temporary rentals. This directly impacts an organization’s ability to serve their communities. As a result, many communities lack meaningful access to books needed for education, research, entertainment, and general learning. However, states such as Rhode Island, New York, and Maryland represent a new hopeful front in the eBook licensing problem: state contract and consumer protection laws. Join this session for a discussion of these new laws that are harnessing state law to assert the library mission through “reasonable terms,” weaponizing the very tool that has been used against libraries for decades: licenses.

 

"Rent not to own" is a position that Courtney believes we (libraries) can get out of. His alternate title is, "The problem with ebooks and how libraries can solve the problem & save the world."

 

 Last year: Library pandemic narrative - the fallacy of licensing culture:

• Out of control licensing culture
• Devaluation of library's legal and economic value in collections
• Excessively narrow fair use analysis
• Fear of technology preventing legitimate legal uses....

In summer 2020, the types of licenses expanded, such as "read along" licenses. "Must be licensed?"

The question became - no matter what -  "Why didn't the library get a license?" 

Courtney asked, "How do libraries legally do what we do?" He then references the bundles of rights under Section 106 and then noted that there are exceptions to those rights, e.g., Section 107 and Section 108.

With ebooks we tend to focus on "to distribute copies of the work." However, there is the first sale doctrine in Section 109.  It is Section 109 that allows libraries to circulate legally acquired works.

Licenses eviscerates the library mission in terms of sharing, preservation, etc. Licensing requires libraries to "repurchase" content multiple times. Licenses can make the libraries mission impossible eBook licensing continues to threaten the very existence of libraries.

Licenses really impact collection development. Courtney pointed back to 2011 and the HarperCollins 26-checkout limit  and its impact on library collections. In 2019, Macmillan attempted a two-month embargo on library books. In other words, trying to say that libraries are affecting their market. This year was the DPLA agreement with Amazon, which makes ebooks and audiobooks available to libraries. Available, but not sold. There are positives with the DPLA deal, but it perpetuates the licensing model. Finally, he pointed to the Maryland Library Association statement on Maryland's Digital Content Law. This could result in libraries becoming a version of Hulu or Netflix, where libraries do not own their content. 

Two solutions:

1. Publishers stop selling libraries materials with overly restrictive licenses. Sell the materials with the full rights libraries need to have in order to accomplish our non-profit, preservation, education, research and access mission.  
2. Use the same laws that have been weaponized against libraries: Contract and licensing law (with a sprinkle of public policy enforcement). State legislatures have introduced bills to force publishers to offer electronic "literary products" licenses to state libraries on "reasonable terms." A bill on this did pass in Maryland and became law on June 1.  A version has been introduced in New York and Rhodes Island.
   
   The Association of American Publishers believe this is problematic. They believe that federal law preempts state law in this area. They point to Copyright Law Section 301.  However, Section 301 does not apply to contracts. 

Courtney pointed to the Senator Wyden and Representative Eshoo press release and walked through the questions they are asking in their letter to the Big Five publishers.

State law governs the formation of contracts and licenses. They can mandate terms that are fair and practical. They can ward against unfair and deceptive practices. He pointed to state level net neutrality bills as a precedent for this.  

 

States govern state procurement laws. This is where we can work to impact publisher licenses. A positive use of contract law!

Courtney believes that "reasonable terms" need to be defined and not left to be fuzzy. 

This tactic would not solve all problems, but it could be an important start.