Librarians have raised a pretty loud outcry (for librarians) about the new e-book pricing policy announced last week by Harper Collins, under which libraries would be able to loan an e-book only a set number of times before having to pay again to continue lending. This model seems unfair to libraries, especially because they would not be able to plan their budgets, since the actual cost of each e-book purchased this way would be unknown and variable. But now publishing consultant Martin Taylor has written a column praising Harper Collins and telling librarians to suck it up and fork over the money. His core argument is that publishers have “serious concerns” about the impact of library lending on their e-book markets and that “librarians have not managed to address [these concerns].” This, to my mind, is a remarkable statement.
It is not the job of librarians to address the concerns publishers have for their bottom line; to say that we should implies a view that libraries are nothing more than a market, the existence of which is justified only insofar as they serve publisher’s interests. But libraries serve the interests of an altogether different clientele. Public libraries serve the readers of their geographic areas and are responsible to local boards or town councils. Academic libraries serve students, faculty and, often, the local populace, while being responsible for their fiscal management to deans and provosts. Publishers are entitled, if they want, to make a business decision about how they price e-books, but libraries are equally entitled to make a business decision about how to spend their money in ways that best serve their patrons and their institutions. If buying e-books under this new model is not good for our patrons, publishers have no cause to complain or berated us for being out-of-touch.
Taylor suggests that the price for each loan of an e-book under the Harper Collins model is reasonable. But this claim confuses price with value. No matter what the price of each loan is, if the book represents a drain on a library’s resources that cannot be known in advance, it is a bad value. There is almost no scenario in which a library’s money would not be more responsibly spent elsewhere.
Some publishers have always disliked the deference to libraries that is built in to US policy and, under the “first sale” doctrine that is found in section 109 of the Copyright Act, US law. First sale was first formally recognized in US law in 1903, when Bobbs-Merrill publishing tried to control the down-stream pricing of one of their books by placing a statement on the title page claiming that the book could never be sold for less than $1. When Macy’s department stories offered the book at a discount, Bobbs-Merrill sued and lost in the U.S. Supreme Court. The Court made clear what US lending libraries were already assuming, that once a first sale of a work had occurred, the exclusive right of distribution was “exhausted” and the purchaser could resell, or lend, the book without permission or control from the publisher. It was discontent with this well-established public policy that led Pat Schroeder, when she was president of the Association of American Publishers, to call all librarians pirates.
Since public policy has always been on the side of library lending as a fundamental building block of democracy, publishers now find that the only way they can attack it, and try to develop an income stream they have never had before, is through DRM – technological controls that prevent lending e-books more than a set number of times. Like Pat Schroeder’s rhetoric of piracy, this approach has been tried before, by the music industry. Record companies finally figured out that consumers would prefer not to spend their money for products that have their own obsolescence built in (unless the consumer pays again and again), and they abandoned the use of DRM. The publishing industry is entitled to try the same failed experiment if they like, but, again, they should not complain if consumers, in this case libraries, choose not to support the model.
Taylor recognizes that the Harper Collins’ model would cost libraries money they have never had to spend before – repeated fees to keep loaning content they have already purchased – and he helpfully provides suggestions about where that money should come from. He mentions and rejects the possibility that the publishers might forgo this new income stream. He would be happy to take tax money, but he realizes that this is unlikely. So instead he suggests that library branches be closed and librarians be laid off in order to free up the extra money. That’s right; the core of his argument is that we should close libraries so that publishers can make more money. Of course, the libraries that would get closed or under-staffed are always those in places where libraries are most needed, in disadvantaged neighbors or at less wealthy colleges and universities.
These libraries are, apparently, expendable if they cease to serve the narrow (and probably misconceived) interests of publishers at this particular moment in history. This kind of support, I expect, will not do Harper Collins much good; I can only hope that this naked self-interest and disregard for public policy and the general welfare will make Taylor’s column what it should be, a rallying cry to libraries and those who support them in city halls, state legislatures and academic administrations to stand up against business practices that threaten their core missions.
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For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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