Time for action on eBooks: If not now, when?

The text below is the long read version of an article that appeared in Information Professional on 2nd November 2023.

The goal of the Knowledge Rights 21 (KR21) programme is to ensure that libraries and their users benefit from a legal environment that allows them to deliver on everyone’s right to knowledge. This, we believe, is essential for equitable and high-performing education, innovation and research, as well as being a public interest goal in itself. Made possible by the Arcadia Fund, the programme’s work focuses on promoting legislative and policy reform through effective, evidence-based advocacy that brings together libraries with partners and allies who share this same objective.

Over a Digital Barrel

Key to libraries’ ability to fulfil their mission is the possibility to operate freely and effectively in the digital environment. This cannot be said to be the case today, in particular when it comes to the dysfunctional nature of eBook markets, a core area of focus for the Programme. Fundamentally, this comes down to lawmakers being asleep at the wheel, despite their basic duty being to work to uphold the public interest. In the case of paper books, copyright law offers safeguards against the excesses of information monopolies that exclusive rights might otherwise create. It does this through statutory provisions safeguarding libraries’ rights to acquire, develop collections, lend and preserve (the four pillars of what a library does). However, the same cannot be said of an eBook. This is because when these activities take place digitally, the safeguards that exist under copyright laws are trumped by contract law, offering no safeguards for libraries.

To make matters worse libraries in the UK do not benefit from the same protection from unfair contracts as individual consumers. This is in spite of the fact that the same imbalance of negotiating power exists between publishers and libraries as it does between a business and a member of the public. Indeed, libraries often have little choice, bound by their professional duty to respond to the needs and demands of users, be they wider communities in the case of public libraries, or faculty and students in the case of university libraries. This means that frequently libraires have no choice but to buy books and accept the contacts they are offered. In the law, such contracts constitute “contracts of adhesion.”

As a result, a publisher can decide whether to license an eBook or not. Even if they do, as a result of the legal monopoly the publisher has, they are entirely at liberty to determine what price and what terms of use the library (and by extension library patrons) are subject to. In short, the problem is governments’ failure to extend safeguards against the worst effects of legal information monopolies to the digital age. This leaves libraries over a barrel.

The UK Standing Out for all the Wrong Reasons

It is therefore perhaps of little surprise that one international study comparing eBook availability in five English language markets (US, UK, NZ, Canada and Australia) found UK public libraries to have the lowest number of eBooks available of any country, and the highest average cost per loan. The study concludes that “overall, the UK has the least attractive licence terms, the highest prices, and the lowest availability.” The initial findings of a University of Glasgow study commissioned by Knowledge Rights 21 finds the situation in UK universities to be equally grim. (Final report December 2023). As highlighted by the #eBookSOS campaign, refusal to license, bundling, removal of titles with no notice and eye-watering prices are common in British universities. This matters.

The focus of the open access movement has predominantly been around journal articles. We are at a much less developed stage when it comes to the books that undergraduates rely on, and books that all postgraduates in the arts, humanities and social sciences rely on. Looking just at pricing, KR21 believes that the current trajectory around eBooks in the UK is entirely unsustainable. We could all too easily find ourselves in the situation that even offering just a partial selection of eBooks will end up consuming all available acquisition budgets. This is indeed already the projection by 2030 in Denmark for public libraries, which has far higher levels of eBook use and availability than here.

Maintaining our independence

We believe it is time for the profession to take stock and ask ourselves some hard questions. When libraries cannot acquire an eBook because a publisher refuses to license it, what does this say about our freedom to develop collections? Similarly, how can we build sustainable collections when titles may not be renewed, or in the case of bundling, a publisher simply swaps titles out without even informing us? Are we a library if we cannot undertake interlibrary loan as licences prevent it? If a library cannot acquire, develop collections, preserve, or lend an eBook in cooperation with another library is it still a library? Where a library cannot host books on its own platforms, and has little control over or knowledge of how collections can be used, are we any more than a publishing company’s paywall?

We believe that that unless libraries can acquire the same rights in the digital world that we have in the analogue, a dilution and undermining of what it means to be a library is all but guaranteed. We believe that it is time not just to engage proactively with publishers, but to take a leaf out of their book and take our message to policy makers. Indeed, if we believe in the value of access to knowledge, it is our professional responsibility. To this end, earlier this year alongside over 30 European library associations Knowledge Rights 21 launched a call to action around eBooks to ensure that libraries can continue fulfilling their centuries-old role of providing access to knowledge to the public. (A big thanks to Nick Poole from CILIP whose idea this was.)

In addition to the study on the competition aspects of eBook markets from the University of Glasgow mentioned above, we also launched the an eBook Pledge in July alongside the Authors Alliance and Library Futures. The Pledge asks publishers to sign up to terms which enable libraries to do that they have been able to do in the analogue world for millennia. Such terms will help make eBook markets sustainable for libraries, authors and publishers. In addition to us writing to all Federation of European Publishers members to ask them to engage, we were delighted to see the Pledge being promoted at CILIP’s annual conference and put on the library leaders “to do” list. Perhaps more library focussed, the next steps on the eBook Pledge front for Knowledge Rights 21 is to issue an addendum which librarians can use in their negotiation with publishers and vendors to push for the rights that we (and authors) need.

In conclusion, the situation libraries face around eBooks goes right to the heart of the broader question of libraries’ place in the digital information ecosystems, and so in the modern world. This should be a vital concern for leaders in public as well as university libraries. If like us you believe in a vibrant digital future for libraries, guaranteeing the right of libraries to acquire and lend eBooks should be a strategic priority. To accept the current situation is to accept the hollowing out of libraries’ role, and the undermining of the public interest. So if not now, when is the time for action?