A Report on the “In Re Books Conference on Law and the Future of Books”
at the New York Law School October 26 & 27, 2012
By: Richard Naylor, Director, William K. Sanford Town Library
Entitled “In re Books: A Conference on Law and the Future of Books”, the conference included six 90 minute sessions, each with four experts and one moderator, each covering a different aspect of the ebook world. While it had a strong legal underpinning, the conference was broader than that, including business, literary, and library leaders from around the world. The focus was on ebooks and other digital media and while there were a number ideas not described here my focus in this report is mainly on the problem of access to ebooks for libraries. Since our most pressing concern regarding ebooks is accessibility, especially in terms of library acquisition, my remarks will begin with library accessibility.
First, since the conference was at the New York Law School, it is fitting that a few terms be defined up front. One is ‘Rights Holders’. Generally ‘Rights Holders’ are publishers, since most authors relinquish their hold in order to be published. Thus there were several author group representatives at the conference to deal with their own aspects of the ebook problem.
Another important term is “Orphaned Works.” These are works for which the Rights Holder cannot be identified as opposed to out of print titles. These are especially numerous in college libraries and their number is increased by books originally published in other countries and by works with photographs, which may have their own permissions granted only to the original author.
By the way, legal access to out of print works has been successfully negotiated as described for example by Roy Kaufman from the Copyright Clearance Center that collects registrations from a huge universe of materials and is a one stop source for permission for use. Access has also been obtained, as desccribed by Eric Hellman from Unglue.it, through the organization of crowd-funding, where a price is negotiated with the Rights Holder to make an out-of-print title widely available.
Finally a mention of the concept of “Reader’s Rights” should be made even though it has permeated most of the library cogno-sphere. (I thought I might have made the word “Cognosphere” up but a Google search turned up several instances of its use). Efforts to develop a universal statement of Reader’s Rights have been undertaken by a variety of organizations including our very own New York Library Association. This concept puts the Reader as the focus for our efforts, not the library which exists to be a vehicle for the Reader.
We already knew that publishers are under no current legal obligation to sell to libraries. During the Summer of 2012 NYLA sent representatives to the New York Attorney General’s office to discuss what rights libraries might have to purchase books from publishers who either do not sell to libraries, only lease, or who sell at multiples of retail. The opinion of the Assistant Attorney Generals was that since libraries are not members of a protected class, publishers are under no obligation to sell to them. This largely closed the door on court action but left open the option of trying to get new legislation passed that would provide legal remedies.
I asked one of the panels a question about the feasibility of getting legislation passed that would require publishers to sell to libraries. Jonathan Band from The Policy Bandwidth said that while it is possible to get legislation passed, legislation often gets changed before it is passed and you never know what you are going to end up with. His recommendation was that we would be better off working through the influence of our well placed elected officials and thus to use political pressure to get a favorable resolution to our accessibility problem.
There were some examples of other countries passing laws to promote public access to materials considered of cultural value. Aurelia Rostaing from the French National Library described a french law that rights revert back to the author if a publisher fails to reprint for five years. The EU has a similar law in process. This is of particular interest to universities where many of the books on their shelves, that could be digitized, cannot be, either because a publisher withholds the right or because the ‘Rights Holder’ cannot be located. This is also an example of legislation getting changed because In the french case for out of print titles publishers were able to win a large concession in that all they have to do is to say they intend to reprint and they automatically get ten years to do so.
Another European legal approach was described by Nico van Eijk from the University of Amsterdam. He said many European countries developed fixed book prices and set laws so that there would be a well stocked bookstore in every village but that with the ubiquity of online books the fixed price model is no longer necessary, although fixed book prices continue to be the law in France.
Not all legal cases are about access. Valerie Small Navarro from the ACLU of California has fought to protect reader privacy on ereaders and introduced, with the Digital Frontier Foundation, a Digital Privacy Bill, SB602 (2011) in California. She said even when we accept a trade-off from a new feature or new service there still needs to be transparency in the process. A recent example is where Amazon deleted materials from Kindles without the buyer’s knowledge. They did it because of a lawsuit against them for having sold the materials improperly; however, the case showed how software was embedded in the Kindles that could do things without the Kindle owner’s knowledge.
An example of a legal distinction that is needed was provided by Jule Sigall, from Microsoft. He said we need to make a formal distinction between types of works; a textbook or literary work are not the same as a tweet or a blog post. The former should maintain copyright protection while the use of blogs and tweets should fall under fair use, with citations where appropriate. This is a requirement if we want to develop a system of collective licensing. He also suggested that we should put the burden of keeping a national registry on the rights holder as this would greatly facilitate use of the works.
While our Attorney General’s Office is of the opinion that we cannot legally require publishers to sell to us based on current laws, there have been some recent court cases decided around the margins of accessibility, the most famous of which was the Hathi case, brought by Indiana University and the University of Michigan. Jessica Litman, a copyright attorney working with the University of Michigan Library was a panelist who helped work the case. To cite the article on the HathiTrust from Wikipedia,
“HathiTrust is a large-scale collaborative repository of digital content from research libraries including content digitized via the Google Books project and Internet Archive digitization initiatives, as well as content digitized locally by libraries. HathiTrust was founded in October 2008 by the thirteen universities of the Committee on Institutional Cooperation and the University of California. The partnership includes over 60 research libraries across the United States and Europe, and is based on a shared governance structure. Costs are shared by the participating libraries and library consortia. The repository is administered by Indiana University and the University of Michigan. The Executive Director of HathiTrust is John Price Wilkin, who has led large-scale digitization initiatives at the University of Michigan since the mid 1990s. As of January 2012, HathiTrust comprises over 10 million volumes, over 2.7 million of which are public domain. HathiTrust provides a number of discovery and access services, notably, full-text search across the entire repository. In September 2011, the Authors Guild sued HathiTrust (Authors Guild v. HathiTrust), citing massive copyright violation. A federal court ruled against the Authors Guild in October 2012, finding that HathiTrust's use of books scanned by Google was fair use under US law. Hathi, pronounced "hah-tee", is theHindi word for elephant, an animal famed for its long-term memory.
There have also been a number of creative approaches to solve various aspects of ebook accessibility problems. Roy Kaufman from the Copyright Clearance Center provided some basic history starting with the original copyright issues caused by the printing press up to the advent of the photocopier and the 1976 revision of copyright law. He talked about current challenges in the digital age and the need for changes to the law. One important new consideration is the concept of collective licensing, where one organization such as the Copyright Clearance Center collects registrations from a huge universe of materials and is a one stop source for permission for use. One of the points was that it is not impossible to come up with a system to compensate authors and publishers. However, this is a pay per use model that may not be suitable for most public libraries because of problems associated with deciding on a cost. The problems are most serious with current bestsellers where it may be very difficult to manage pricing since it varies by author contract and publisher.
Eric Zohn from the William Morris Endeavor also said that if we shift to a license model for ebooks, there will be a need for a new model for royalties to Rights Holders. In addition, the lease model weakens our claim of ownership which should allow for things like lending or giving a book away or even throwing a book away should one choose. These are not just library desirable features of a book but also Reader desirable rights. Aaron Perzanowski from Wayne State University also stressed how important it is that Readers are owners under the First Copy principle. This is the principle that a reader buys the rights to use or give away or sell a copy, it does not give give the copy holder the copyright to produce the work. This also allows secondary markets and fits with the common law exhaustion principle, a common law patent doctrine that limits the extent to which patent holders can control a patented product after an authorized sale. The question of lease versus buy is further muddled by the links on popular book web sites that say “Buy the Book” after you agree by clicking a ‘I have read the license’ clause that includes text suggesting in fact that after you buy you do not own it.
An oft recurring thread that ran through the conference was “Readers’ Rights”. For example, Lateef Mtima from Howard University spoke of readers as individual constituents and stressed how important it is to maintain the social utility of reading and access to materials. He said that copyright social utility leads to social justice. Pamela Samuelson from the University of California at Berkeley spoke of a serious concern of a loss of culture if we do not continue to have access to orphaned works. And today, many people do not search for anything beyond what they find online so that for a growing number of citizens non-digitized materials do not exist. These ideas offer strong support for our continued focus on the reader and the “Reader’s Rights”. Jessica Litman mentioned above from the University of Michigan Library said that the two essential parts of the publishing process are readers and writers. Everything thing else is an intermediary. She stressed the need to keep the focus on Reader’s Rights as we work towards solutions.
And, Ariel Katz from the University of Toronto said In addition to fair use that when deciding a case the courts also consider the effect of prices on the user, or in this case the reader. This would seem to reinforce the goal of maximizing social utility. He revisited the need for a Bill of Rights for Readers that should be added to Copyright Law. Finally, Niva Elkin-Koren from the University of Haifa spoke about competition. She said that many of our current problems stem from publishers trying to maintain control. She said that, in fact, they are losing control, largely because of intermediaries such as Amazon and Apple, which are mega-platforms that tend to turn the book industry from a commodity system to a service system. She said that in order to maintain many of the social good of books we need to draft a Bill of Reader’s Rights, which by the way, Canada, has done.
To finish up, there was a very interesting presentation on the future of the publishing industry. John Thompson from the University of Cambridge described his studies on the sociology and economics of publishing and power. He described three developmental phases. The first was characterized by the growth of retail chains, new methods of stock management, and the rise of the hardback. Most of us can remember the proliferation of the mega-bookstores -- Borders and Barnes and Noble. His second phase surprised me. It was the rise of the literary agent and his or her increasing power. Now we are in the third phase and that is the growth of publishing corporations as divisions of conglomerates which apply pressure to increase profits 8-10% per year. This pressure has been characterized by increasing industry consolidation which will continue until finally the publishing arms will be divested. During this third phase we are also seeing the destruction of the midsize publishing company and the proliferation of the small publishing company. These dynamics are creating the necessity of “discovery” where in the past publishers invested in paying high prices to mega bookstores to place their blockbusters in the front end of the store. As this ground of competition is eliminated publisher money is being moved to online advertising. Our case is to show that libraries have always, and can continue to, provide a way for publishers to get their books in front of the public. Obviously, our case is fairly obvious to the small publishers; our challenge is to convince large publishers that they need us, as we need them.