Cautions on E-books

Daniel Goldstein warns that some of the contracts colleges are accepting may limit access in key ways.

February 6, 2015
 

According to academic libraries, there’s a just-over-the-horizon golden age in which “you always have whatever scholarship you need access to, at any time and wherever you are.” This quote comes from my library’s “welcome” page, but it could as easily come from many American university libraries.

Having e-books supersede and replace physical books is essential to the vision. Accordingly, libraries have made great advances in digitizing their paper book collections and making them available online through Google Books, HathiTrust and other digitized collections. These superb collections make the vision seem possible, enticing and even closer than we might imagine. Many university libraries have taken another step toward its realization by instituting policies that either prefer or require new book acquisitions to be in digital rather than paper format, when available.

But there is a fundamental difference between digitized versions of physical books and born-digital books. While the former move us closer to the “anyone, anytime, anywhere” future, the economics of the latter are pushing us in the opposite direction, toward a future in which access to digitally published titles is restricted and provisional. 

This difference becomes apparent when we consider interlibrary loan. I regularly explain to patrons that they cannot use an e-book licensed by another University of California campus and that their best option is to request a paper copy by interlibrary loan. In one recent case a patron wanted a book that had been published only online and only as part of a package. Since subscribers to the package were prohibited from sharing any of its contents via interlibrary loan, there were only two options for the patron: either she had to read it while physically situated at a subscribing library, or my library would have had to pay many thousands of dollars to license the package. 

To understand what is happening, it is first necessary to understand that digitizing projects like Google Books and HathiTrust are possible because libraries own the physical books they contain and because they choose to exercise the option to make them available in this fashion. The key point is ownership. Acquisition of a physical book brings with it a consistent and well understood set of rights and restrictions that have been clearly defined and relatively stable for more than a century. 

Collectively we refer to these rights as conferring ownership. The principle that the sale of a book extinguished the right of the seller to control the subsequent disposition of a book was established by the United States Supreme Court back in 1908 in Bobbs-Merrill Co. v. Straus and reaffirmed only last year in Kirtsaeng v. John Wiley & Sons, Inc. Known as the first-sale doctrine, this principle underpins fundamental practices of a research library. It means that libraries can do pretty much what they wish with their books as long as those actions do not violate copyright (or other) law -- such venerable library practices as lending books to whomever they choose and for however long they wish, sharing them through interlibrary loan and selling or giving them away derive from the first-sale doctrine.

First-sale doctrine also provides the legal basis for such innovative practices as digitizing books; if the digitized books are in the public domain, then libraries can make them freely available, as they do with the full-view titles in HathiTrust. Copyright law and court decisions also permit digitization of in-copyright books for such transformative uses as full-text searching (you can find out if a term is used in a book, and how often, even if you can’t see it online) and data mining of digitized collections to discover patterns of thought and word use. One of the most exciting uses of digitized in-copyright titles is to provide print-impaired readers with full-text, screen-readable access to a body of literature orders of magnitude greater than previously available. 

Born-digital e-books are very different animals than digitized e-books, even though they may appear similar on the screen. Where digitized e-books are owned by libraries, born-digital e-books are almost always only licensed from either the publisher or a third-party vendor, not purchased outright. The distinction between owning and licensing means, among other things, that the digital file is located on the seller’s server and not on one owned or controlled by the library. Additionally, the bundle of rights associated with ownership of a physical book is not transferred intact when a library merely pays for access. 

E-book licenses vary widely. At one end are subscription packages with low per-title prices and few rights; a library’s patrons can access a subscription title only as long as it pays an annual subscription fee, effectively renting the books like you rent a car. Libraries’ ability to share titles acquired this way is extremely limited.   

At the other end are licenses that ensure the library’s access to the title “in perpetuity,” for a one-time fee, permitting the library to engage in many of the practices associated with owned books. Most limited perpetual access e-books licensed by libraries (in contrast with inexpensive personal copies) generally cost about the same as a physical book, but add on rights and users and prices quickly escalate by three and five times. (The per-title cost drops if book packages are licensed, but bulk acquisition has problems of its own, and in my opinion should be avoided.)

I am aware of a single major vendor that permits the purchase of an e-book allowing a library to download and maintain a copy of the title on its own hardware, but the rights that accompany a title purchased this way are still far more limited than those associated with a purchased book. For example, it would be a violation of the purchase agreement to send one of these books out on interlibrary loan; only a single chapter can be shared per request. 

In addition, the fact that titles are licensed enables the owner to engage in practices that libraries traditionally reject. Foremost among them is gathering data about readers. For libraries, protection of reader privacy is a core value, and they routinely break the connection between borrower and book as soon as the book has been returned. 

Vendors, on the other hand, can monitor and record individual patrons’ book choices. They can even assert control over readers’ behavior. Once, when I was skimming an e-book, a “Browse Warning!” appeared, asserting that I was either illegally copying pages or “navigating the book in an inappropriate manner.” Were I to continue my inappropriate navigation, the vendor warned, it might not only cut me off from this book, but from all its books. I never skimmed one of the vendor’s titles again.

Finally, there is a separate problem associated with the practice of licensing, not purchasing e-books. The perpetual access model assumes that the publisher or vendor of the title is a stable, financially secure corporation that possesses the expertise to write -- or at least vet -- complex legal instruments and has invested in whatever backup mechanisms are needed to provide satisfactory assurances of access, perpetual or otherwise. However, there are ever-increasing numbers and varieties of small, individual and ephemeral publishing outlets that lack the resources to meet library standards. Consequently libraries are simply unable to acquire the e-books produced by a growing segment of the publishing industry.

For all these reasons, born-digital e-books pose significant challenges to libraries’ abilities to operate effectively, protect their patrons and meet their needs, and acquire the books they need at a reasonable cost. If libraries are to continue to provide the unique services they offer, if they are to realize the “anyone, anytime, anywhere” vision, and if they are to support the future use of their holdings in ways we cannot yet imagine, they need to own, not merely license books. And e-book ownership needs to be more closely equivalent to ownership of a physical book than is currently the case.

In short, we need to renegotiate the way libraries operate in the e-book marketplace so that they can fulfill their unique and irreplaceable functions while also ensuring that publishers and authors receive their due. It will be expensive, if we can ever get there. Books will cost more and libraries will have to develop the infrastructure needed to host, preserve and deliver the books they acquire. Fortunately, we do not have to start from scratch. We have some existing, if imperfect, purchase models on which to build. It will take time, and the golden age may be farther off and not as perfect as we had hoped. In the meantime, libraries should ease off on their preference for licensing e-books instead of buying physical ones.

Bio

Daniel Goldstein is an arts, humanities and social sciences librarian at the University of California at Davis.

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