Introduction

Ebooks are an increasingly in-demand commodity in the digital age. Both public and academic libraries rely heavily on publishers to source their collections of ebooks and e-resources. Before the advent of digital materials, libraries were free to purchase and lend out print copies, as their rights allow. With the introduction of ebooks, publishers introduced new lending models that changed the market, leaving them with more control than libraries over how ebooks could be accessed and paid for. Through this new landscape of control, publishers and libraries have been increasingly at odds when it comes to ebook pricing in particular. Global events like the Covid-19 pandemic accelerated the need for digital lending in libraries, which was already on the rise pre-pandemic. Meanwhile, publishers have attempted to retain their grasp of market control through embargoes and steep prices that leave libraries unable to keep up in terms of budgets and funding.

An understanding of how ebook pricing affects libraries and their users is key to being able to advocate for libraries in these matters. In order to set the stage, the players must be introduced: publishers and both academic and public libraries. Within the context of this discussion, it is also important to understand the factors that influence both publishers and libraries in the fight for their rights to collection control through digital licensing, copyright protections, and cost management. Exorbitant prices for ebooks have led to attempts at legislation and library-backed advocacy campaigns. Libraries have tried to stand their ground in a fight for new protections, while publishers aim to keep the legal allowances currently providing them control.

This chapter describes the main players in the pricing game, and summarizes what has been and can continue to be done to establish libraries in a position where they can continue their work in providing their communities free access to the information they seek. Libraries provide supplemental, not competitive access in the ebook market (Katz, 2017), and ever-increasing ebook prices are putting a strain on these services.

Background

An Overview of Publishers

Trade publishing, meaning those who provide books for retail booksellers (ODLIS, n.d), is controlled mainly by the ‘Big Five’, which are the five biggest trade publishers in the world: Penguin Random House, HarperCollins, Simon & Schuster, Hachette, and Macmillan (note that these are all private companies). Precise sales data is generally kept secret, but estimates put the Big Five sales at 60-70% or higher of all English language trade books sold (Crumm, 2022). Academic publishing is an even bigger amalgamation of wealth. Of the eight biggest publishers in the world by revenue, all are involved in academic publishing, with only two also being involved in trade publishing: Bertelsmann (who owns Penguin Random House) and Hachette Livre (who owns Hachette). These top eight biggest publishers accumulate the majority of the wealth in publishing (Zandt, 2021). The other big academic publishers are RELX Group, Thomson Reuters, Pearson, Wolters Kluwer, Springer Nature, and Wiley (Zandt, 2021).

In 2020, Penguin Random House (Bertelsmann) made a deal to purchase Simon & Schuster for over $2 billion USD. The U.S. Justice Department filed a civil antitrust lawsuit to block this purchase (Crumm, 2022). In the initial complaint, the Justice Department stated that after the merger, Penguin Random House would have accounted for nearly half of the market for the most anticipated top-sellers, with the next largest competitor being less than half that amount. Together the merged company and the next largest competitor would have been two-thirds of the most anticipated top-sellers (United States v. Bertelsmann, 2021). In November 2022, a decision was reached and the merger was blocked by a U.S. Federal Judge, due to the potential for the mega-company to dominate the market and lessen competition (Italie, 2022). Though Penguin Random House was quick to disagree with the decision and would pursue an appeal, this ruling was seen as a success by those in support of authors and readers, in terms of promoting the sharing of information and ideas, as well as laying the groundwork for further anti-trust legislation (Albanese, 2022b). Regardless of appeals, Simon & Schuster will still be sold to another entity, especially considering it was previously bid for by other publishing companies including NewsCorp, which owns HarperCollins (Italie, 2022). With a select few large publishers controlling the market, and with their efforts to increase their hold on the industry through mergers, libraries’ abilities to effectively share information, especially through ebooks, could be reduced.

Increasing Digital Demand in Libraries

Ebooks are becoming an increasingly popular service provided by libraries. In between publishers and libraries there exists vendors who may bundle ebooks into packages for sale and may also provide technology to aid in material distribution (Library Distribution, n.d.); however, these vendors still are required to follow the licensing terms set by the publishers and must pass on those restrictions to libraries (Library Distribution, n.d.). These vendors keep a portion of the profits but due to confidential agreements, it is unclear how much of these profits actually then make their way through publishers to reach authors and creators (CFLA, 2019). Platforms such as Overdrive are primarily suited for public libraries, while other vendors like ProQuest may be better suited for academic libraries, both due to the type of material they host as well as the specific technology they use (ReadersFirst, 2014).

Overdrive tracks the number of books checked out by both libraries and schools that use their services. In 2019, 211 million ebooks were checked out by users, a 15% increase from 2018 (Overdrive, 2020). In 2020 this number rose to 289 million, a 40% increase from 2019. For 2020, around 2 million of those checkouts were through schools rather than libraries, though this number is not stated for 2019 (Overdrive, 2021). Keeping in mind, also in 2020, there was the Covid-19 pandemic, which presented a new landscape for digital service needs. As an example, the Edmonton Public Library (EPL), one of the largest public library systems in Canada, saw a 37% increase in ebook borrowing during the first year of the pandemic, from 1.3 million to nearly 1.8 million. This increase coincided with a 55% decrease in physical items (EPL, 2021). 2021 still saw an increase in ebook usage at EPL, but a significantly lower one at 1% to just over 1.8 million. Physical circulation increased by 30% but not to the same number seen prior to the pandemic (EPL, 2022). These all indicate that the desire for ebooks from the public library is still on the rise, despite a slowing rate of increase.

Academic libraries are also increasing their ebook collections. A study in 2020 found that 190 of 193 academic libraries surveyed currently had an ebook collection and that the majority had at least 500,000 ebooks available (Novak et al., 2020). As an example, the University of Alberta, a top five research library in Canada, had more than 2.2 million ebooks according to their February 2021 figures; however, ebook circulation data was not provided (University of Alberta Library, 2021). The University of Alberta has been e-preferred since 2013, meaning unless it conflicts with collections guidelines they will purchase the ebooks over print. Unfortunately, their licensing priorities are not mentioned (University of Alberta Library, 2022).

For both academic and public libraries, it is clear that digital services are in demand and that libraries are also incorporating them into their services. As ebook prices increase, libraries will be increasingly limited in how much they can meet the demand.

Copyright Exhaustion and Digital Licensing

Two significant factors influencing how ebooks are able to be lent out by libraries are the application of copyright rules in regards to digital formats of books and licensing of digital books. In the United States, the Doctrine of First Sale is a law codified in the American Copyright Act ensuring libraries’ rights to the free circulation of print copies they have legally acquired (American Library Association [ALA], 2022). Works are considered property of the purchaser that cannot be controlled by the creator once sold, and the purchaser cannot make or sell copies of the original intellectual work, as the copyright holder retains those rights (Jenkins, 2014). According to Turco (2020), the equivalent in Canada is the idea of copyright exhaustion, which in essence are laws restricting the distribution of copies made; you can resell a used book but reproducing it is still governed by copyright law. The idea of copyright exhaustion is not codified into law in Canada and instead relies on court jurisprudence (Katz, 2016, Lonsdale, 2011).

Copyright laws are what publishers lean on to enforce limitations on the quantity and availability of books, allowing publishers to set supra-competitive prices (Katz, 2017). Legal rules such as copyright exhaustion are fundamental to libraries being able to provide services to the same level they have been in the past (Katz, 2017). With the advent of digital resources, the Doctrine of First Sale and copyright exhaustion have not been applied to ebooks in the same way they would with printed publications. Digital copies do not go through the same wear as physical copies, lasting indefinitely with proper digital preservation, which is one reason publishers have used to justify their enforcement of higher pricing and stricter licensing terms (Blackwell et al., 2019).

With ebooks, libraries are not able to outright own their copies, and must instead purchase licences that require renewal under contracts, as first sale rights are not applicable (Jenkins, 2014). With the increasing demand for ebooks, libraries have been faced with adapting to a new purchasing model as compared to traditional print books. Ebooks are more commonly licensed as opposed to sold outright to libraries. The reason libraries cannot purchase an ebook from a store and put it into circulation at the library as they would with a print book is because of this licensing. Digital Rights Management (DRM), a means of controlling access to digital materials through technological safeguards, must be implemented by libraries or their vendors to ensure licensing terms are met and digital titles are not being illegally shared or copied, protecting the rights of the copyright holder which are, in this case, publishers (Lemmer & Wale, 2016).

This sales model means that libraries are extremely limited in how they can circulate content due to strict licensing terms and a lack of power to negotiate those terms (DeCastell et al., 2022). These controls are especially problematic considering that smaller independent publishers often choose to not publish ebooks, forcing libraries to source their content from big publishing houses that predatorily use licensing agreements (DeCastell et al., 2022). Activities like interlibrary loans are not possible in the same way they would be with print books (Jenkins, 2014). Controlled Digital Lending, described by DeCastell et al. (2022) as where libraries can “circulate a digitized title in place of a physical one in a controlled manner” (p. 2), is but one way libraries may be able to navigate around licensing limitations, and will be discussed further in the section titled Applying Digital Exhaustion and Controlled Digital Lending of this chapter.

In comparison to ebooks, print copies are not bound by licensing and instead get bought outright. Library print lending functions on a one-to-one basis, and though digital copies are lent in the same fashion, there are more limitations placed on them and they are paid for in a different fashion than print copies, i.e. licensing (Canadian Urban Libraries Council [CULC], n.d.). Publishers also argue that print copies will need to be weeded, and ebooks will not, due to the nature of the format; digital copies will likely not need to be repurchased, causing a theoretical loss of revenue that the publishers aim to recoup through licensing and enforcing rights management practices through contracts (Anderson, 2016).

Consumers being able to purchase an ebook copy does not always mean that libraries can do the same. In 2020, 1.5% of the year’s bestsellers were unavailable for libraries in the ebook format. Some self-published authors will not license their titles to libraries, and if they self-publish through Amazon, are not even allowed to do so (Rothschild, 2020). According to the International Federation of Library Associations and Institutions, Amazon has increasingly become the exclusive publisher of best-selling authors while refusing to sell to libraries. This lack of access for libraries will only become more problematic as Amazon aggressively expands its market power (IFLA, 2021) There are many parts at play within the ebook market and it is important to understand that both copyright and licensing are used by publishers in the fight to control the pricing and access to materials they provide.

Challenges

Both publishers and libraries have attempted to deal with a growing lending landscape, albeit in differing ways. While publishers feel their rights are infringed on by library lending, libraries are being suffocated by terms and conditions enforced by publishers, leading to a tense relationship between the two. Libraries are increasingly challenged in how to keep providing their users with access in the way they traditionally have been able to. This section will look at the opposing relationship between publishers and libraries, and how ebook prices have been drastically increased, causing detrimental effects on libraries’ abilities to build their collections. Furthering the issue are publisher embargoes which not only continue to strain relationships but also set unreasonable limitations on libraries attempting to incorporate new releases into their collection.

The Adversarial Relationship Between Publishers and Libraries

Growing tensions due to the constraints placed on ebooks have led to a number of disagreements between libraries and publishers. Hostility has increased between the two sides, which has not benefited negotiations or helped to allay fears of libraries being unable to continue providing adequate services.

Prior to 2011, ebook lending worked similarly to print lending. Libraries were sold perpetual ebooks with a one book/one user model, where each ebook is a single copy that can only be lent to one person at a time (Sisto, 2022). In 2011, HarperCollins changed their model, instead of selling ebooks they were going to license them. Ebooks still used the one book/one user model but could be only licenced for a maximum of 26 loans. Ebooks were available immediately upon publication and at close to the consumer cost. There was disagreement in the library world about the changes. Some libraries believed it made ebooks too expensive, while others believed that it was generally positive (Sisto, 2022). In 2012, the lending model changed again with Random House increasing the price of perpetual ebooks by 100-200% (Sisto, 2022). The other big publishers began to sell ebooks to libraries with varying limits. Some, like Penguin, Hachette, and Macmillan, did not sell their full ebook lists, and others, like Simon & Schuster, required libraries to have a ‘buy it now’ option for patrons (Sisto, 2022). A 2014 article from the American Library Association stated that the publishers seemed to fear libraries would decimate their profits leading to difficulty for libraries in obtaining titles (American Library Association, 2014). Despite the apparent fear, statements from publishers at this time claimed libraries were an important part of the ecosystem. However, this was never echoed by Macmillan, the last and most reluctant publisher to begin e-lending. They began a pilot program in 2013 that involved both loan duration and number-of-loans limitations. Macmillan has continued throughout the years to make it clear how much they dislike e-lending (Sisto, 2022).

In a 2019 letter to Macmillan authors, illustrators, and agents, the company CEO states its concern that libraries were “cannibalizing sales” (Sargent, 2019, p. 1). He claimed that 45% of Macmillan’s ebooks are borrowed from the library and that this number is only growing (Sargent, 2019). Sargent claims the reason so many of Macmillan’s ebooks are borrowed from the library is that ebook lending is frictionless (Sargent, 2019). For physical books, users have to travel to the library to check out a book and they may have to wait until there are available copies. This provides friction in getting a book, making users more likely to simply buy the book instead of waiting for a library copy. In theory, ebooks are frictionless (Sisto, 2022). Ebooks can be quickly obtained from the comfort of a user’s own home and can be easily transferred between devices (Sisto, 2022; Sargent, 2019). In a case where two items are frictionless to get, but one costs money and the other is free, people are more likely to choose free. For publishers to be able to compete, they need to introduce friction to the free option.

Macmillan introduced friction to library borrowing through their licensing and pricing agreements. In their 2019 letter, they created new terms for library systems: one copy in perpetuity for half the current price. They claimed this pricing was in answer to libraries’ wishes for lower prices and perpetual access (Sargent, 2019). Librarians have called out that 2019 letter from Macmillan, stating that library ebook lending is not frictionless. For some popular books wait times may be months, even a year after release when the number of holds is typically low for other books. The director of White Plains Public Library in New York, Brian Kenney, said he did not believe that Macmillan actually considered libraries when creating this pricing model, because these institutions generally do not want titles in perpetuity. Owning titles in perpetuity is more likely to be needed by collecting libraries such as the Library of Congress or the New York Public Library. Kenney felt that Macmillan was offering something they knew most public libraries would not want (Albanese, 2019).

2020-2021 saw librarians and vendors claim a 30-40% increase in digital lending that corresponds with a rise in trade sales (Albanese, 2022a, p. 2). Total publishing industry sales hit $29.33 billion USD, a 12.3% increase from $26.1 billion USD in 2020 (Milliot, 2022). Sales on all formats is currently still high from pre-pandemic years. An 11.6% increase in sales for all formats occurred from 2020 to 2021. Ebook sales saw a 5% decrease in 2021 from 2020 but still had a 7.4% increase over 2019 (Milliot, 2022).

Librarians have suggested that libraries actually act as a marketing and discoverability tool, thus increasing sales rather than cannibalizing (Albanese, 2022a). A 2011 study by Pew Research Center among 2,986 Americans found that ebook borrowers are also ebook purchasers. When asked about their most recent book, 41% of ebook borrowers said they had purchased it. 55% of ebook readers who had a library card preferred to purchase ebooks, while 36% preferred to borrow. Of ebook borrowers, 33% said they preferred to purchase ebooks, while 57% preferred to borrow (Pew Research Center, 2012). A 2020 survey by Noorda & Berens found that, after first finding a book in the library, 35.9% of respondents still bought that book online and 31.1% of respondents bought that book in a bookstore. In addition, a larger percentage of library card holders surveyed bought more books, in every format, during Covid-19 than the general survey population (Noorda & Berens, 2021, p. 237). This suggests that not only does the library help with discoverability, but borrowing books from the library does not preclude people from also purchasing books.

West (2019) considers publisher actions to be alienating to libraries, despite the benefits that libraries can contribute by increasing readership and drawing more people into buying books from publishers. Despite the claims of publishers that libraries are stealing profits, or ‘cannibalizing sales’, libraries continue to not only purchase materials in high volumes but can contribute to growing publishers’ purchaser base. Good relationships must be built between libraries and publishers to not only help in negotiating contracts that are financially beneficial to both, but also to maximize content exposure and, indirectly, purchases, through expanded library collections (Anderson, 2016).

The High Prices of Ebooks

The pricing of ebooks is a contentious matter causing additional strain to the relationship between publishers and libraries. Publishers use ebook pricing as a way to maintain their control over the market and revenue stream. These costs can be prohibitive to libraries. The CEO of the Brock Library in Ontario, Katie-Scarlett MacGillivray, uses Abandoned in Death by J.D. Robb to exemplify ebook costs. A hardcover physical copy is $23 CAD but the ebook version is $75 CAD coupled with licensing restrictions. She states that those licensing agreements mean that instead of about three to four years on-shelf like physical books, the ebooks are two years or 52 uses, whichever happens first (Dillon, 2022). Another example of high ebook costs is from the American Library Associations’ report on competition in digital markets. A consumer copy of The Codebreakers by David Kahn costs $59.99 USD, and consumers keep it forever. For libraries, the ebook costs $239.99 USD. However, rather than a lifetime copy, a library can only loan that ebook out for two years. For four years the cost is $479.98 USD (American Library Association, 2019).

Blackwell et al. (2019) found that ebook prices compared to print prices were almost three times higher in the U.S., while in Canada, ebook prices were double the print price. It is worth noting that Canadian print prices in general were also found to be almost double that of American copies (Blackwell et al. 2019). These pricing issues exist in both the public library sphere as well as in academic libraries.

One study examined the price differential in 462 titles in book order requests by faculty at an academic library for the fall 2012 semester. Only 264 titles had ebook copies but in order to determine the average print price they included all 462. The titles were then split by Library of Congress classification to attain a mean price differential. The mean price differential was $19.17 USD but the range was $2.76 USD to $50.05 USD (Novak et al., 2020). Another study of medical ebook and print book prices in 2018 found that the total cost for 753 book samples would be $144,420.83 USD in print but for ebooks it was around double at $322,034.73 USD, a ratio of 2.23 (Watson, 2021). The study also found that the price differential was affected by the publisher. Wolters Kluwer had the highest mean ratio of 4.27 whereas the lowest ratio was 1.01, meaning that generally, Wolters Kluwer ebooks were around 4 times more expensive than print. Wolters Kluwer also had the widest range in ratios: 1.99-15.60. It was the only publisher with ebooks that cost over ten times the print cost (Watson, 2021). Dooley (2011) suggests that, for libraries, a 10-15% premium for an ebook with multiple concurrent users is reasonable, but that a premium of that much for single-user titles is harder to argue. Of the publishers with more than 10 titles in the Watson study, only two charged an average of 15% or less, and the majority of books in the study were for single simultaneous users only. (Watson, 2021). All of these statistics point to ebook pricing as being arbitrarily defined by the publishers, leaving libraries no choice but to pay them or risk being unable to provide adequate services to their communities.

Effects on Library Collections

Libraries bear the weight of having to pay high ebook prices, the results of which mean that library services can be heavily impacted. For libraries, high prices require larger portions of a budget leading to decreased purchasing power, especially when building collections (CULC, 2011). These budget limitations can then have an impact on the ability of libraries to properly service their communities. Libraries with smaller budgets, such as rural public libraries, may be less likely to be able to get the number of ebooks necessary to provide for their community (Dillon, 2022). Libraries are likely to be more willing to spend a premium on titles that allow multiple simultaneous users, but when they have to pay double the print price for single simultaneous users it begins to cause problems. High price differentials can lead libraries to reduce collection sizes or purchase print titles even when ebooks may be preferred (Watson, 2021). When libraries cannot get the books the community needs, especially when the community may not understand the context of the collections decisions, it can result in a negative perception and less user support (Rothchild, 2020). An advocacy statement from the Canadian Urban Libraries Council (CULC) states their concerns over ebook pricing: “barriers to borrowing reduce support for libraries, which leads to decreased funding and decreased purchasing power” (CULC, 2011, para. 5).

High prices force libraries to consider budgetary constraints within their collection policies. A study of collection development in academic libraries found that the most important considerations in making purchasing decisions were appropriateness of content, price, and availability, in order of most to least importance (Novak et al., 2020). Of the 169 libraries that ranked these factors, 10.06% said that price was the most important consideration, while 41.42% said price was second most, and 23.08% said prices was third most (Novak et al., 2020). The University of Alberta Library, as one of the top five research libraries in Canada, has electronic format as the default preference for all monographs with some exceptions. One of those is where there is a prohibitive cost to purchasing in electronic format (University of Alberta Library, 2019).

In terms of availability, Blackwell et al.’s 2019 study of three ebook vendors, noted that in Canada, the titles analyzed were found to be less available in ebook format than in print: 84.2% vs 94.4%, respectively. Availability, however, has not been a limiting factor as much as pricing has been in terms of library access to titles because titles are generally highly available. Libraries would not have issues building rich collections if they were only needing to concern themselves with title availability (Blackwell et al., 2019).

Libraries can only do so much to work with the changing landscape of ebook pricing. While content and availability are less limiting factors in building a collection, pricing appears to be extremely and increasingly limiting, notwithstanding the other ways publishers have attempted to exert control, such as through embargoes, that have strained their relationships with libraries.

Embargoes on Ebook Purchasing and Availability

Embargoes, also known as windowing, are ways publishers have attempted to control the market by limiting access to ebooks during a certain period of time after works are published (West, 2019; Leslie J. Savage Library, 2019). The goal is to protect the profits collected by the publisher (Leslie J. Savage Library, 2019). Some embargoes also aim to promote direct purchasing of their products by readers who otherwise might borrow these materials from the library (Enis, 2020).

In academic libraries, this can mean limited access to titles, and can also be directed toward certain institutions if publisher conditions are not met (Leslie J. Savage Library, 2019). For a lot of academics, it is imperative that they be aware of new developments in their field and that information be up-to-date; information may be promoted by publishers, but embargoes can limit when such information can be published in academic works, and allow the publishers to shape what information researchers can use through the choice of what is promoted (Lemke et al., 2022).

Embargoes also exist in the public library sphere, limiting the ability of libraries to purchase or even licence ebooks during select amounts of time, usually immediately after title release. In 2019, four out of the Big Five publishers had committed to not implementing embargoes for public libraries on newly released titles (Feldman, 2019). MacMillan, however, ran a trial embargo period of its TOR imprint books in the summer of 2018 (Albanese, 2018). The TOR trial resulted in increased profits for MacMillan as well as increased non-library sales, with a four-month embargo period (West, 2019). Libraries were noted to have purchased fewer titles after the embargo period was over (West, 2019). Due to what MacMillan perceived as a successful trial embargo, a permanent embargo was put into place in November 2019. It was announced through the 2019 letter discussed earlier (Feldman, 2019; Sargent, 2019). MacMillan’s 2019 embargo meant that library systems, some serving millions of users, would only be able to have one copy, at half price, for the first eight weeks after publishing (Enis, 2020; West 2019). This would result in fewer library users having access to titles after they were released, all for the hopes of increasing retail purchases from those who do not rely on libraries. (Enis, 2020).

Feldman, (2019) was of the opinion that MacMillan did not listen to public library concerns after the trial embargo. They stated that:

High prices and limited term licences are severely impacting [libraries’] ability to build collections and serve [their] communities. […] Managing these increasingly complex digital licences requires significant additional expense and time from library staff—resources that could be spent serving users or buying more books from more authors (Feldman, 2019, para. 7).

The MacMillan embargo was eventually lifted on March 17th, 2020, with the pandemic being cited as the publisher’s reason for ending it (Enis, 2020). While the pandemic did indeed force many to rely on e-resources with the shuttering of physical spaces, Enis notes that Macmillan may also have alienated almost 55% of their reader base, because that percentage of readership is primarily gained through library access (2020). Libraries purchase a large number of ebooks and embargoes such as these do not aid in sustaining healthy relationships between them and publishers.

Responses

Despite the strained relationships between themselves and publishers, libraries have attempted to mitigate impacts on their services due to embargoes and rising ebook prices. Some of the ways libraries have pursued action involve efforts to establish legal parameters which can protect their rights to continue lending. While the results may not have always been in their favour, ongoing advocacy is used as a way to spread the work and influence outcomes. Joining consortia remains a path forward that can help libraries share the burden of increasing ebook prices, and while potentially risky, Controlled Digital Lending (CDL) is seeing an increase in popularity as a means of continuing to provide equitable access to e-resources. This section will go into depth on these responses and elaborate on potential outcomes for libraries.

Lawsuits and Legislation: Legal Wrangling from Publishers and Libraries

Both libraries and publishers have attempted to retain control of their ebook access through pushes for or against legislation regulating ebook pricing models. In response to such embargoes and aggressive pricing tactics, there are some jurisdictions that have tried to mitigate the effects of ebook pricing on libraries, or at least support libraries in some fashion. Legislation has been put forward in multiple jurisdictions within the United States, however, the laws have so far not been very successful.

In May of 2021, a law was ratified in Maryland, U.S., to protect libraries from excessive publisher practices in ebook pricing and licensing. The Maryland Act (House Bill 518/(SB432)) sought to protect libraries from publishers’ predatory ebook pricing by requiring publishers to offer ebooks to libraries under ‘reasonable terms’ (Klosek, 2021). In testimony, it was made clear that the law would not directly regulate pricing, but would hopefully pave the way to licensing terms that were mutually beneficial to both publishers and libraries (Testimony in Support of House Bill 518, 2021).

Publisher groups such as the Association of American Publishers (AAP) have been outspoken in their desire for legislation to be kept from passing, and making calls to “protect the legal framework that has long incentivized the American private sector to invest in, publish, and distribute original works of authorship to the public, in service to society” (AAP CEO Maria Pallante, as cited by Albanese, 2021b, para. 5). In December of 2021, the publishers followed through with their desires to prevent legislation by filing a lawsuit to protest the Maryland law on the basis of it violating the U.S. Copyright Act (Klosek, 2021; Milliot, 2021). In the filing, the AAP argued that the law created “unauthorized, unprecedented, and unjustified encroachment by a state into federally protected intellectual property rights and the creative and financial investments that such rights represent” (Association of American Publishers, Inc. v. Frosh, 2021). The suit claimed the law was unconstitutional, and, in July 2022, the court sided against the state, saying that the law disrupted publishers’ control in distributing their products (Brittain, 2022).

New York had similar legislation that was proposed in the summer of 2021 as a means to regulate pricing directed toward libraries. The bill had even received enough support to pass in the state senate and assemblies, using similar verbiage to the Maryland law; it dictated that publishers present libraries with ‘reasonable terms’ in their pricing models (ALA Media Relations, 2022). The legislation was vetoed in December of 2021 by Kathy Hochul, New York’s Governor at the time, with copyright protection and federal copyright pre-exemptions cited by Hochul as a reason for her veto (Kathy Hochul, as cited by Albanese, 2021b, para. 2).

The American Library Association (ALA) has called for further legislation in the same vein as the bills detailed above, saying that regulations are necessary for allowing libraries the continued ability to provide information access through e-resources to their communities, especially in light of aging populations and events like the Covid-19 pandemic (ALA, 2021). Massachusetts, Illinois, Tennessee, Missouri and Rhode Island are other states considering similar laws, though with the demise of the Maryland and New York legislation it remains to be seen whether these types of laws will have staying power once enacted (Brittain, 2022; Minow & Courtney, 2022). As previously mentioned, publishers have increasingly pushed back against proposed legislation with lawsuits. Jenkins noted in 2014 that, at the time, legal cases were favouring publishers, and in more recent years publishers have been winning legal suits and challenges, leaving libraries with no legal recourse to support themselves.

In Canada, CULC has proposed recommendations that the Government of Canada introduce legislation safeguarding libraries’ access, with similar verbiage (‘reasonable terms’) to the legislation from the U.S. (CULC, 2022). With some unfortunate losses in terms of passing legislation in the United States, many jurisdictions are aiming to change the verbiage that ultimately caused those bills’ demise (Minot & Courtney, 2022). As libraries face the potential of legal challenges to their services, changes may become more favourable to them, especially when libraries join forces to push back against publisher harm (Library Futures, n.d.-c).

Applying Digital Exhaustion and Controlled Digital Lending

One way to deal with the failing legislation is by handling how copyright exhaustion and the doctrine of first sale work in the digital world. Katz (2017), argues that copyright exhaustion should apply to ebooks. Applying copyright exhaustion to the digital world does not mean publishers cannot implement restrictions, they just have to be ‘reasonable’. In order to be reasonable, restrictions must be included in the contract to protect one of the parties from injury and they may not exceed what is necessary to achieve that goal. Katz’s paper ultimately argues that there is precedence for allowing digital exhaustion and the law must consider the institutional design of libraries in working toward the public good (Katz, 2017). Digital exhaustion would allow libraries to purchase ebooks from resellers if they had lower prices, getting publishers to create new ways to encourage libraries to purchase from them instead or discourage consumers from selling their copies (Katz, 2017).

There are some practices, like Controlled Digital Lending (CDL), which aim to apply copyright exhaustion principles digitally (DeCastell et al., 2022). CDL would mean treating digital copies the same as a physical copy, using an “owned-to-loaned” model; however, this is not a practice codified into law (Ojala, 2021). CDL makes interlibrary loans much more accessible, and can be especially beneficial to those with disabilities as it allows works to be transferred to accessible formats, thus allowing libraries to offer multiple formats as long as they are only lending one version per owned copy at a time (DeCastell et al., 2022). Using CDL, libraries would circulate a digital version of a book they own outright as a print copy while controlling the use so that only one version of the item is circulated at any given time (DeCastell et al, 2022). DeCastell et al. (2022) argue that format should not change the way copyright protection is applied and therefore, CDL can be used within the context of Canadian fair-dealing practice, according to six factors of fairness (For more information on CDL in an American context, see Hansen & Courtney, 2018).

At this point in time, the implementation of CDL can still prove to be risky for libraries; DeCastell et al. (2022) believe that these risks (likely of lawsuits) are worth taking due to the benefit CDL provides in furthering libraries’ ability to provide widespread access to resources. Steps must be taken by libraries to mitigate the risks of not only being sued but losing those lawsuits and the resultant repercussions (DeCastell et al., 2022, p. 21). The Internet Archive was sued in 2020 by a group of major publishing houses (See Hachette Book Group, Inc. v. Internet Archive, 2020) for their lending of digital materials during the pandemic. Though the courts sided in favour of the publishers in March 2023 (Peters & Hollister, 2023), it must be noted that the Internet Archives’ National Emergency Library had removed all controls on lending in response to the shutdown of physical library spaces in the face of Covid-19 quarantine orders, and therefore was not a true implementation of CDL as it lacked the controlled aspect (Robertson, 2023). The allowing of unlimited access to the ebooks in the collection was found as an infringement on copyright through the creation of derivative works on the part of the Internet Archive (Peters & Hollister, 2023). The results of this case reinforce the importance of retaining controls on how ebooks are lent out by libraries, and highlight how easily libraries can cross the boundary into copyright infringement with their digital lending practices. With the decision in this case, the future of CDL can still be considered uncertain; lawsuits like these not only create negative perceptions of what CDL is, but also deter libraries from implementation. Carefully considering which materials CDL is applied to (such as materials already in the public domain, or materials you have received permission to circulate from the copyright holder) and using Digital Rights Management to ensure copies are circulated fairly are some of the main ways that libraries can control their risk levels (DeCastell et al., 2022).

Consortial Sharing

While advocacy and legislation may be an ongoing battle, one way that libraries have seen some concrete success in cutting costs is through the joining of consortia. (Murphy, 2019). A library consortium brings together groups of libraries to create shared collections and support members in their negotiations with vendors or publishers (Sweet & Clarage, 2020).

There are a few different ways that sharing models can work for a consortium. The first is a package model which allows consortial members to use ebooks from bundles. These bundles are often cheaper than what a single library would have bought them for (Murphy, 2019). A second model is called a demand-driven acquisition (DDA) model. It has three versions, which all involve only purchasing the book once a certain number of loans have occurred. Purchases may be made by individual libraries or from a communal amount of money (Murphy, 2019). A third, evidence-based selection model, provides libraries access to ebooks at no charge during a certain period of time if they spend a minimum amount of money when the time is over. Libraries can examine the usage data to make informed choices on which ebooks are best to purchase (Murphy, 2019). Yet another model is the access-to-own model which counts money spent on short-term loans towards a full purchase of the ebook (Murphy, 2019).

Consortial sharing models are being used in multiple academic libraries across North America. One example is NovaNet, a Nova Scotia consortium with 25 academic libraries, which uses a DDA – limited access model. With this model, the consortium is given a number of yearly uses; if this number is reached then another ebook is purchased automatically (Murphy, 2019). An initial pilot program done in 2012 found that if libraries had purchased an ebook on its first use it would have cost them $250,000 CAD. Instead, they collectively spent $60,000 CAD. It was considered successful enough to become permanent (Murphy, 2019).

ConnectNY is a consortium located in New York with 18 academic libraries. Their first ebook-sharing project began in 2010, with each library giving 1% off their acquisition budget resulting in $248,000 USD per year for the two-year project (Harloe et al., 2015). Ten libraries had an equal or higher percentage of use than contribution and eight had a lower percentage of use than contribution. However, seven of those eight were within 3%. Only three libraries did not break even on their contribution versus the value of titles used by patrons. All libraries except one used more of the consortial books than they could have purchased on their own (Harloe et al., 2015). If the consortium purchased 12,166 titles for libraries it would cost $1,068,905 USD. If libraries had purchased them all on their own, accounting for the fact that titles are overlapped between libraries approximately 1.9 times, it would cost $2,030,919 USD (Harloe et al., 2015). The ebook-sharing program is still a success, providing perpetual access titles to consortial members (ConnectNY, n.d.).

Library consortia are not just for academic libraries, they can also involve other library types. NC Live is a consortium of 200 public and academic libraries throughout the state of North Carolina. Their Home Grown Ebook Collection is a collection of ebooks available to consortial members from North Carolina publishers. The initial year-long pilot in 2014 went well with 93% of libraries believing the collection was fair value and 72% believing it was a good or excellent value compared to the cost (Morris, 2015). The Home Grown Collection is still running and now consists of over 4,800 ebook and audiobook titles. All are unlimited simultaneous access in perpetuity, providing users with immediate access to titles from publishers like Duke University Press and Workman (NC Live, n.d.).

In all these examples the consortium negotiates with publishers and vendors freeing individual libraries from having to do the arduous process themselves. NC Live negotiated with local publishers, creating lasting relationships. Publishers even suggested that they could help authors and libraries get in contact to host library events to promote ebooks (Morris, 2015). In Nova Scotia, the NovaNet consortium managed to get 60 publishers involved in their pilot program by reaching out (Murphy, 2019). Working more directly with publishers and taking the time to maintain relationships, something much harder for individual libraries to achieve, can help to ease tensions.

Despite the general success, consortial models may not be the best option for libraries. In CULC’s statement on ebook pricing models, they state that while the consortial model works it may not be enough, especially for popular titles (CULC, 2011). Public libraries tend to need more popular titles, so for public libraries, other options could be explored.

Advocacy

Advocacy plays a large role in creating not only sympathetic perceptions of libraries’ plights but also puts pressure on publishers to provide transparency and reasonable negotiations. Considering all of the challenges mentioned previously, some librarians have been able to retain control through advocacy campaigns against publishers’ efforts to keep control of the ebook market. Librarians are not asking for free ebooks, merely wanting to collaborate with publishers to find a balance that still allows libraries the ability to provide to their communities. Besides backing legislation, libraries have been able to lead campaigns in efforts to quash attempts by publishers to control ebook access through pricing. CULC’s statement on ebook pricing models mentions how they have aimed to “build relationships with Canadian publishers, distributors and producers,” with the goal of benefitting not only their patrons but also the publishing industry (2011, para. 2).

There have been campaigns such as #econtentforlibraries by CULC and #ebookSOS, aiming to spread awareness of these issues through trending tags on social media. #Econtentforlibraries is a call from CULC to pursue action, promoting the issues librarians face both over social media and directly to publishers (CULC, n.d.). This campaign targets the Big Five publishers and states that libraries are an essential part of the book industry not to be ignored (CULC, n.d.). #EbookSOS, run by three U.K. academic librarians, notes that ebook pricing affects all types of libraries (EbookSOS, n.d.; Anderson & McCauley, 2022). They have written open letters calling for investigations into what they consider predatory pricing practices and licensing that is too restrictive on academic libraries (EbookSOS, n.d.; Anderson & McCauley, 2022). They also were able to use librarians’ experiences to build a dataset showcasing the extortionate pricing markups, with included notes on their difficulties sourcing from publishers. (Dataset: Softwood, n.d.).

Campaigns such as #econtentforlibraries and #ebookSOS in Canada and the U.K., respectively, are but some of the grassroots campaigns that have taken on the Big Five globally. In the U.S., the ALA has helped start #ebooksforall and letter-writing campaigns such as the ten thousand letters written in support of the New York ebook pricing legislation, to demonstrate that libraries remain a priority to members of communities (Inouye & Wagner, 2020). Library Futures is an American organization spearheading the movement toward digital rights for libraries (Library Futures, n.d.-a). Library Futures helps track the progress of legislation in various states, (As found at: ‘Library Futures’, n.d.), and provides resources to help spread awareness of the ways libraries can fight back, such as statements in favour of supporting CDL legislation, and shareable graphics (Library Futures, n.d.-b). According to Albanese (2021a), Library Futures has played an instrumental part in advocating for inquiries regarding the ebook market. In Canada, the group Canadian Public Libraries for Fair Ebook Pricing, a coalition of public libraries, has helped to raise awareness on ebook publisher pricing issues, leading both the #econtentforlibraries campaign and the #fairebookprincing social media campaign (CLA, n.d.; EPL 2016).

These campaigns only are able to vocalize library concerns if there exist voices to share them. Increased awareness can only further benefit the libraries’ position in the relationship between them and publishers.

Conclusion

Through the varied responses libraries have attempted as a result of rising ebook prices, there is no clear best way forward; however, this does not mean these actions are to no avail. Libraries vary in purpose and mission, and each must consider what the best course of action may be. Ultimately, unless both libraries and publishers can cooperate in negotiating fair pricing deals, both sides will lose, though libraries have a lot more at stake. Libraries, if not able to keep up with the pricing hikes, will lose their ability to support their communities effectively and their communities may lose support in them.

Laws aiming to give libraries more control have been fought by publishers, who wish to retain complete control themselves. At the same time, libraries carry out advocacy campaigns in response to increasing budgetary pressure evolving from increasing ebook pricing models. Consortia have been able to help libraries join forces to shoulder the weight of high ebook pricing by sharing resources and providing a united front in ongoing negotiations with publishers and vendors. While the scope of ebook pricing problems extends to both public and academic libraries in slightly varying ways, both types of institutions can play similar roles in advocating for stronger collaboration with publishers. Advocacy appears to be one path librarians can take through the murky waters of publisher negotiations.

Regulation of ebook prices does not have to be extreme. With ‘reasonable’ measures and restrictions to allow libraries continued access to ebooks, both libraries and publishers can retain enough control over their collections and portfolios, respectively, letting communities continue to thrive and help the ebook market continue to flourish.

The “war” between libraries and those who set ebook prices is still ongoing and will require librarians to be vigilant about their support of ‘reasonable’ access to e-resources. Otherwise, libraries are at the mercy of the publishing powerhouses and may, as Katz states, “[…] not disappear altogether, but will slowly function less as libraries and more as archives.” (2017, p. 83). Ebook pricing is part of an interconnected web of many market factors; altering one part affects change in another. One cannot have a complete understanding of the finer details of how these factors exacerbate the issues, creating a systemic problem that is hindering the cooperation of libraries and publishers. This discussion has articulated some of the ways in which these factors play a role in the struggle of ebook pricing, providing the basic groundwork for understanding.

Sources for Further Reading 

(Note: this list has been alphabetized according to title)

Hao, L., & Fan, M. (2014). An analysis of pricing models in the electronic book market. MIS Quarterly, 38(4), 1017–1032. https://ssrn.com/abstract=2374950

Mathematical analysis of ebook pricing models explaining the two major types of pricing models. It is focused on the consumers rather than libraries but provides a thorough look at how pricing can work.

EbookSOS. (n.d.). Campaign to investigate the library ebook market. https://academicebookinvestigation.org/

A U.K. campaign by librarians to investigate the high prices of academic publications. Includes many resources for both advocates, librarians, and authors, as well as being a source of news about the problems with publishers in academic publishing.

DeCastell, C., Dickinson, J., Mau, T., Swartz, M., Tiessen, R., Wakaruk, A., & Winter, C. (2022). Controlled Digital Lending of library books in Canada. Partnership: Canadian Journal of Library and Information Practice and Research, 17(2). https://dx.doi.org/10.2139/ssrn.4031054

This piece argues for the use of Controlled Digital Lending as Fair Dealing in Canada. The authors provide a detailed analysis on CDL and how its use might be interpreted within the bounds of Canadian legislation. Suggestions for implementation and risk-mitigation are provided as well. For information on CDL in an American context, see Hansen & Courtney, 2018.

Katz, A. (2017, August 22). Copyright, exhaustion, and the role of Libraries in the ecosystem of knowledge. I/S: A Jounral of Law and Policy for the Information Society, 13(1): 81-123. https://doi.org/10.31228/osf.io/dzmpc

Legal paper on digital exhaustion and the impact this has on libraries. It explains the importance of libraries within the copyright system and what can be done to protect their rights in e-lending.

Softwood. (n.d.). Crowdsourced data from librarians re: ebook pricing. [dataset]. Retrieved October 27, 2022, from: https://docs.google.com/spreadsheets/d/1ix8AkrDisZnQ9TEPD0wFtPdG8to9WQ28l0qAqJ9ZOI0/edit#gid=

A dataset of ebooks as compared to print prices collected by a variety of librarians. Provides perspectives from librarians currently dealing with these issues and insight into the price differentials in academic publishing.

Lemmer, C. A., & Wale, C. P. (Eds.). (2016). Digital rights management : The librarian’s guide. Rowman & Littlefield Publishers.

This book contains detailed information on Digital Rights Management and how it can be implemented by Librarians. This resource is helpful for those looking to learn more about the technology used and the implications of DRM in the librarianship field.

Canadian Urban Libraries Council [CULC]. (n.d.) #eContentForLibraries. Retrieved October 15, 2022 from: https://econtentforlibraries.org/

Advocacy website from the Canadian Urban Libraries Council, providing information on how to advocate for better library ebook prices. Unfortunately, the examples of library prices provided have not been updated since January 2019.

Anderson, Y., & McCauley, C. (2022). How the Covid-19 pandemic accelerated an e-book crisis and the #ebooksos campaign for reform. Insights, 35(13). http://doi.org/10.1629/uksg.586

An article which considers issues in the e-book market. It also discusses the #ebooksos campaign and how it works to support all libraries.

Sisto, M. C. (2022). Publishing and library e-lending: An analysis of the decade before covid-19. Publishing Research Quarterly, 38, 405-422. https://doi.org/10.1007/s12109-022-09880-7

In-depth exploration of the relationship between publishing and library e-lending. It looks at changes in publishing and contract and licensing deals in the context of libraries from the mid-2000s until 2019.

ReadersFirst. (2014). ReadersFirst guide to library e-book vendors. https://librarytechnology.org/docs/19884.pdf

This document provides a rating system to help guide libraries in their choosing of vendors to work with, and assesses the efficacy of vendors in supporting library needs.

Minow, M., & Courtney, K. K. (2022, May 17). What does my library need to know about ebook laws? American Libraries. https://americanlibrariesmagazine.org/2022/05/17/what-does-my-library-need-to-know-about-ebook-laws/

Librarian lawyer Mary Minow answers questions about library ebooks and some state-level efforts for fair licensing terms, including some future steps for librarians to take. The authors provide a perspective that may be informative for librarians looking into the legislative aspect of ebook pricing.

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