Friday, July 08, 2022

Library Futures eBooks Policy Paper: Mitigating the Library eBook Conundrum Through Legislative Action in the States

If you - or someone you know - is considering proposing legislative action in your state to protect libraries from harmful eBook contacts, then you will be interested in this 9-page policy paper.  I'm pasting the executive summary below.  Follow the link for the entire paper.

Executive Summary

To mitigate the eBooks conundrum, Library Futures is recommending the adoption of state laws based on state contract law, state consumer protection, state procurement law, and contract preemption. The Library Futures model eBooks bill is based on the recent eBook legislation and resulting litigation, as outlined below. This model bill language is designed to nullify efforts by the publishers to use the threat of copyright and federal preemption lawsuits against the library community and the public, by harnessing the coercive power of the state to protect against
harmful eBook contracts.

Currently, a number of publishers and eBook aggregators are preventing libraries from acquiring eBooks with licensing (or purchasing) terms that make it impossible for libraries to fully meet their standard access and preservation missions. Often, eBook licenses offered to libraries come with many restrictions on use and/or are prohibitively expensive,1 or worse, sometimes are not available to libraries at any price.2 And when they are available, eBooks can cost a library three
to 10 times the consumer prices for the same eBook.3 Further, most libraries have little, if any, bargaining power and are rarely able to change the terms of the contracts offered to them by publishers. As a result, many libraries face financial and practical challenges in making eBooks available to their patrons and are unable to develop their own digital collections.

In response to the unavailability of equitable terms and fair pricing, library associations in several states are working on various solutions to the eBook problem for libraries. Each legislative solution is focused on providing a pathway for libraries to obtain licensing terms more suited to normal library use. As of June 2022, six states have active bills to address many of these issues. Library Futures supports policies that help libraries fulfill their essential role of making knowledge and culture available and accessible to all, and therefore supports legislation that aims to equitize the eBook marketplace. To that end, we have developed model legislative language that we believe will hold up against legal challenges.

This issue goes much deeper than just the unsustainably high prices for eBooks. Legally, traditional library lending is protected by the “first sale doctrine,” which establishes that ownership confers the right to lend. But new eBook formats have been used to frustrate the public purpose of first sale, and Library Futures believes that legislation is necessary to restore the mission of all libraries to acquire, preserve, maintain, and share materials, even with new technologies.

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