In a July statement, the Maryland Library Association (MLA) praised state legislators for recently passing a new law that seeks to ensure library patrons can have access to e-books that are available to consumers in the state. But does the law also give Maryland libraries a little leverage to change the existing terms under which e-books are licensed libraries?
When it takes effect in January, 2022, the Maryland law (known as SB432) will require any publisher offering to license "an electronic literary product" to consumers in the state to also offer to license the content to public libraries "on reasonable terms." The bill passed unanimously in March, and became law on June 1. Librarians say most publishers, including all of the Big Five, are technically in compliance, offering their full digital catalogs to libraries.
So it raised eyebrows last month when MLA officials circulated a statement and a press release suggesting that some of the prices and the terms currently offered by some of the major publishers are not reasonable—and it raised a question: are Maryland libraries gearing up to use the new law to challenge existing library e-book terms?
The short answer is no, says St. Mary's County (Md.) librarian and library e-book advocate Michael Blackwell, who helped draft the MLA statement.
"There is no plan to use the law to challenge existing models," Blackwell told PW, insisting that the MLA statement was not intended as a warning or a heads up to publishers. "The press release and statement are very much intended as an invitation to publishers to talk with library stakeholders of all kinds," Blackwell said. "'Please consider more library-friendly models,' that's the message. I’m sorry if the aim of the statement was interpreted otherwise."
At the same time, Blackwell concedes the matter is not quite so simple. That's because librarians really do believe, as the MLA statement suggests, that some of the current prices and terms offered by some of the Big Five publishers are in fact unreasonable. And, so too, they claim, do Maryland legislators.
"The legislators in Maryland who introduced this legislation believed that the existing pricing models were unreasonable where publishers charged libraries three or five times as much as they were charging consumers for only a two-year license," says Jonathan Band, a longtime legal advisor to the library community who has consulted with Maryland librarians on the law. "They believed that kind of multiple could only be justified for a perpetual license."
A look at the legislative history shows that Maryland lawmakers did call out library e-book prices in supporting Maryland's e-book law. "An electronic book that might cost an individual $9.99 to $14.99 will typically cost libraries $55 to $65 for a two year license," wrote Maryland representative Kathleen Dumais, one of the bill's sponsors, in written testimony, which also included a table comparing consumer and library price points for e-books.
But Dumais also stated clearly that the legislation does not "set prices" but rather anticipated that publishers and libraries would "negotiate mutually beneficial terms."
Negotiation would be progress. Currently, publishers largely dictate digital license terms to libraries, librarians say. And Band suggests that Maryland librarians are looking only for that—a negotiation, a discussion, an opportunity to find common ground—not a legal action.
"My sense is that libraries in Maryland hope that this legislation will level the playing field in negotiations where until now the publishers have had all the leverage," Band says. "If the Maryland attorney general concludes that the publishers are not being reasonable, an enforcement action can be brought under the statute. But of course no one hopes that it will come to that."
Blackwell seconded Band's take. "[Maryland legislators] don’t want to get involved with directly regulating the marketplace," Blackwell says. "The law itself is a statement. With the law, legislators are stating that some publishers have sometimes set terms that disadvantaged Maryland library readers and they want all Marylanders to have access through libraries to content—content that is not unfairly priced. As we have said so often before, it shouldn’t take a credit card to be an informed resident. And there is also a question of fiscal responsibility—tax dollars provide most library content, and our legislators are concerned."
For their part, publishers reacted coolly to the MLA's "invitation" to reconsider their digital license terms to libraries in light of the new law.
Multiple publishers PW reached out to in recent weeks all declined to comment on the record. And one Big Five publisher referred PW to the Association of American Publishers, which, in a statement, reiterated its position that the Maryland law runs afoul of federal copyright law and is unconstitutional. Further, the AAP statement suggested the library e-book market is working just fine.
"We reiterate that the library market for e-books is robust and appropriate and we question the strategy of library lobbyists, who are sophisticated actors in Washington, in pushing unconstitutional legislation and a storyline that is at odds with both the operation of the law and market facts," an AAP spokesperson told PW, in a statement.
It is certainly true that library e-book lending has posted robust growth for more than a decade—and meteoric growth in 2020, as the pandemic limited access to physical library collections.
But the library e-book market has also been a major source of tension between libraries and publishers almost from its inception. It has only been since 2014 that libraries have had basic access to all of the Big Five's full digital catalogs, Blackwell points out, and that access remains tenuous, he adds, as evidenced by Macmillan's now abandoned embargo policy, to which the Maryland law is a direct response.
"Has any library been able to build the depth and breadth of their collections in digital that we have built in print? No. And it’s not just because digital licenses expire," Blackwell says. "It’s because digital is far more costly. To create and maintain collections in digital like we can in print is simply not sustainable for libraries. And we in Maryland libraries would like to meet the growing demand for digital reading rather than keep the boutique digital collections we currently can afford."
So what would Maryland librarians consider reasonable? In its July statement, the MLA suggests that "print-equivalent" licenses would be a fair option.
Specifically, MLA suggests a "reasonable" digital license would see e-book licenses priced around the same as print books for one copy/one user access to a given title, with the number of lends limited to around 25. The number of lends is based on the average circulation of hardcover books (which MLA says research shows can circulate 30-35 times before needing to be replaced) and paperbacks (which MLA suggests can circulate 15-20 times on average). For digital audio, the MLA statement suggests 55 digital circulations would be reasonable.
The MLA statement also addresses the library community’s long-stated desire for multiple, flexible licensing options at higher price points, including perpetual access, and multi-user access.
"If the balance between all competing rights had been fair for physical materials for decades," Blackwell says, pointing to "the long tradition" of books being sold to and circulated in libraries under copyright, "then why is that not a good template for digital?"
Of the Big Five publishers, only HarperCollins currently offers e-books along these lines, licensing most of its library e-book content on a 26-lend model. Notably, HarperCollins sparked controversy when it first introduced the model back in 2011. But HarperCollins remained engaged with librarians. The model turned out to be ahead of its time, and most librarians now consider the HarperCollins' model to be fair, reasonable, and even preferable in many cases.
"It’s not that metered access is bad, in fact the MLA statement specifically recognizes it as a viable option," Blackwell says. "The core of the MLA statement is that libraries should get a roughly 'print equivalent' in digital costs, even though digital is licensed and print is owned. But the cost for digital is often far higher."
Meanwhile, despite strong opposition from the AAP, laws like the one in Maryland are gaining momentum. In June, New York passed a similar law that is now awaiting the governor's signature or veto. And groups in at least half a dozen states have begun exploring similar legislation.
But can such laws, which are designed first and foremost to ensure basic access, also succeed in getting publishers and libraries to rethink the digital library marketplace? It's at least worth a conversation, Blackwell says.
"MLA wants to jumpstart conversations about what is reasonable—and it doesn’t even have to be with us, though we will certainly talk with anyone who wants to," he says. "Perhaps no entity can speak for all libraries on such a complicated matter as digital content terms. But we think print equivalency is a good start for what we think is reasonable for libraries. Many publishers already agree and have set prices and license terms to match. Other publishers may never agree. But let’s at least talk."