Publishers, authors and booksellers should not become your librarians

Campaign against German legislation for library eLending at odds with EU law, will further damage libraries

Reading nurtures our right to freedom of thought and freedom of expression, including to receive and impart information, as enshrined in Articles 9 and 10 of the European Convention of Human Rights (ECHR)[1]. Germany adheres to the ECHR’s values since it joined the Convention as an original member 71 years ago[2].

However, leaving the right to read and borrow eBooks through libraries to the vagaries and differing priorities of the commercial publishing market makes individual publishing companies, rather than librarians, the real decision makers about what eBook titles libraries may buy and how they may lend them. This provides a poor guarantee of access to the full breadth of culture and scientific knowledge in the 21st century.

The efforts by publishers, booksellers and author associations in Germany to prevent progress towards a legal right for citizens to borrow any eBook title from libraries look to block the proper implementation of EU law as it now stands[3]. Moreover, their campaign against Germany’s proposed eLending legislation, will, if successful, undermine libraries’ independence and their important function in a democratic society and the economy. It is not the place of publishers, authors or booksellers to decide how and if libraries have a role in the digital world.

As we have seen from the 2016 ruling by the Court of Justice of the European Union (CJEU) in VOB v Stichting Leenrecht[4], the freedom to access knowledge matters for the whole of society and the economy, so is a matter that rightly sits with lawmakers.

Knowledge Rights 21 position on eLending

Knowledge Rights 21 (KR21) aims to bring about changes to law and policy that help ensure that everyone can enjoy access to education, research and culture in the 21st century. A key pillar of its work is around the lending of eBooks by libraries of all types. For too long, libraries and their users have been entirely at the mercy of publishers’ commercial priorities that provide no guarantee for libraries being able to lend the eBooks that users want or need to read.

We support the work by organisations such as the German Library Association (Deutsche Bibliotheksverband), the UK #eBookSOS campaign and Library Futures in the US to provide legal solutions that offer guarantees to libraries, supporting the continuation in the digital world of their right to acquire and lend books. Without intervention to rectify eBook market failures, practices such as high pricing, refusal to license, bundling of titles and non-transparent contracts will continue to undermine the ability of libraries to function in the way they have always done for users’ benefit.

Libraries are free to choose, buy and lend any published paper book they want. In contrast, as eBooks are licensed, the library does not own them, meaning that libraries can face refusals by publishers to sell eBooks to them for eLending, along with deterrents such as embargoes, unfairly high prices, unwanted and costly bundling of titles pre-determined by the publisher, and unreasonably restrictive licence terms or technological protection measures.

Too often, libraries are having to tell users that they cannot buy or lend them the book they need as an eBook. With Covid-19 likely to be with us for years to come, this has become a real issue about access to knowledge, given that many consumers cannot afford to buy lots of printed books or licences for lots of eBooks. All this limits possibilities for participation in education, research and cultural life.

This is a global issue being faced by libraries and their users. In the United States, the issue of eLending has led to individual States[5] starting to legislate to create a “right to lend” eBooks, and to the recent launch of an investigation by members of the Senate Finance Committee into the practices of the so-called ‘Big Five’ publishers in their dealings with libraries[6].

Germany

Libraries in Germany have been making important progress in efforts to secure legislation that would guarantee the right of libraries to buy and lend books in a controlled fashion, on reasonable terms. These efforts have been supported by all of Germany’s Länder, and should be a priority for the new Parliament. This will also finally ensure that the CJEU’s 2016 judgement in VOB v Stichting Leenrecht referenced above giving libraries the right to lend any eBook available to purchase in the market, is applied on the ground.

However, as the German Library Association states[7], these efforts are being undermined by “misinformation and falsehoods” from a coalition of book industry organisations campaigning against proposed library eLending legislation in Germany[8] which argue that in the digital world the ability of libraries to do what they have done for centuries – namely freely acquire books and lend them – would damage them.

Amongst other things, the campaign asserts that a right to lend would mean libraries could acquire content at low prices, ignoring the fact that under the German proposals publishers would continue to be able to fix the prices themselves, as the proposal would only limit them to “reasonable pricing”. The question that needs to be asked of the campaign is why publishers would be opposed to reasonable pricing.

The fact is that currently libraries pay very high, even unreasonable, prices for eBooks, usually a multiple of the price to consumers[9], often for just a one-user licence.

The German campaign against eLending legislation also ignores the mandatory Public Lending Right fees already being paid to support authors, by or on behalf of public libraries in all EU Member States and elsewhere in Europe when a print book, and often an audio-book, is loaned. It is paid not just to those authors that write the best-sellers but to all authors, translators and illustrators whose borrowed works are still in copyright, even for loans of editions no longer in commerce. In a couple of European countries, payments are also made for public library eBook loans[10].

Although the issues being faced by libraries go to the heart of their ability to function in a world increasingly moving into eBooks, in terms of economic evidence alone, Knowledge Rights 21 would point to data-driven cross-industry initiatives such as the Panorama Project in the United States which is demonstrating the positive impacts of library lending on book discovery, author brand development, and sales[11].

Further information

German Library Association (Deutsche Bibliotheksverband – DBV) E-Books news release and links to associated documents https://www.bibliotheksverband.de/e-books-bibliotheken (in German) including:

DBV Opinion on the Right to Lend Law

https://dbv-cs.e-fork.net/sites/default/files/2021-04/2021_03_29_dbv_Stellungnahme_Bundesrat_E-Lending_endg.pdf

DBV eBook FAQs

https://dbv-cs.e-fork.net/sites/default/files/2021-10/FAQs%20zu%20E-lending%20Bibliotheken_20211018_0.pdf

For further information about this news release please contact KR21 info@knowledgerights21.org

Knowledge Rights 21 is a Stichting IFLA Foundation Programme, supported by the Arcadia Foundation, in partnership with IFLA, LIBER and SPARC Europe.


[1] https://www.coe.int/en/web/human-rights-convention/our-rights

[2] https://www.coe.int/en/web/portal/germany

[3]  See the Court of Justice of the European Union Nov 2016 ruling in Case C-174/15 VOB v Stichting Leenrecht https://curia.europa.eu/juris/liste.jsf?num=C-174/15 

[4]  Ibid.

[5] Publishers Weekly 11 June 2021 https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/86637-new-york-legislature-passes-library-e-book-bill.html

Maryland legislation: https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/SB0432?ys=2021RS;

New York State legislation: https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=A05837&term=2021&Summary=Y&Actions=Y&Committee%26nbspVotes=Y&Floor%26nbspVotes=Y&Memo=Y&Text=Y

[6] The so-called ‘Big Five’ publishers are Hachette, Harper Collins, Macmillan, Penguin Random House, and Simon & Schuster https://www.finance.senate.gov/chairmans-news/wyden-eshoo-press-big-five-publishers-on-costly-overly-restrictive-e-book-contracts-with-libraries

Publishers Weekly 04 Feb 2021 reports that the ‘Big Five’ publishers are named as co-defendants with Amazon in a current US class action court case alleging they conspired to fix consumer e-book prices. In a 2011 class action against the ‘Big Five’ and Apple, the publishers settled out of court for $166m in consumer credits and Apple lost the case paying some $400m to consumers https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/85499-big-five-publishers-now-defendants-in-e-book-price-fixing-suit.html

[7] https://dbv-cs.e-fork.net/sites/default/files/2021-10/PM_dbv%20zur%20Kampagne%20Fair%20Lesen_20210118_final_1.pdf

[8] Book industry “Fair-Lesen” campaign https://www.initiative-fair-lesen.de/

[9] https://www.bbc.com/news/business-54922764

[10] https://plrinternational.com/established

[11] https://www.panoramaproject.org