Maintaining the status quo for public libraries – to build collections, preserve and lend them – is now seen as a radical and frightening mission, according Ben White, PhD researcher at the Centre for Intellectual Property Policy & Management, Bournemouth University and co-founder of KnowledgeRights21. Here he speaks to Rob Mackinlay about why not challenging the methods used by publishers to protect their content will damage not only libraries, but also threatens research and innovation.

“Publishers can’t refuse to sell paper books to libraries, but they can and do refuse to sell them eBooks. And all we want to do is to be allowed to do what we’ve always done, to keep the status quo, to be allowed to build collections, preserve and lend, so it is strange that the solution sounds a bit frightening and radical,” says Ben White who has been immersed in the legal minutiae of intellectual property across Europe for decades.

He was Head of Intellectual Property at the British Library from 2005 to 2019 and now, while researching for a PhD in AI and intellectual property, he chairs LIBER’s Copyright and Legal Matters Working Group and has an advisory position at the UK Intellectual Property Office, LACA and IFLA. He sees licensing as an existential threat to libraries, saying: “I’m serious when I say we’re looking at the death of the public library as we know it. Digital has changed the dynamics because rights holders have decided that they will not rely on copyright law in the digital age. This has undermined libraries’ position in law and their societal function. We’re just asking for those positions to be reinstated by allowing libraries to purchase, lend and preserve digital content as they have done for millennia.”

The law, or our understanding of it, is the biggest threat to a fragile status quo, Ben says: “The goal posts have been moved, sometimes by licensing and sometimes by less-than-helpful law changes, particularly in the UK.”

Which is why he, Barbara Stratton – LACA’s (UK Libraries and Archives Copyright Alliance) international spokesperson, Stephen Wyber from IFLA and Vanessa Proudman from SPARC Europe, are setting up the KnowledgeRights21 programme (KR21). KR21 will operate in Europe, including the UK, and has already received €3m funding from Arcadia, a charitable fund of Lisbet Rausing and Peter Baldwin in what Ben describes as “the biggest grant ever for libraries to work on intellectual property policy.” One of KR21’s work streams will focus on eLending, including eBook prices, licensing and legislation. Other workstreams include rights retention and legislation to enable OA, making the case for an open copyright norm as exists in Japan, Singapore and the US and ensuring that the flexibilities in copyright law are not undermined by licences or technical protection measures.

Bottom of the pile

The situation in the UK is particularly bad and illustrates why KR21’s work is needed. Firstly, Ben says that the UK is the English-speaking state whose public libraries are most adversely affected by eBook pricing and restrictions: “There are two pieces of research from Monash University (Australia) and both of them found the UK having the worst eBook provision in public libraries.”

The research compared the availability of eBook titles in public libraries in the US, Canada, New Zealand, Australia and the UK and Ben said: “Not only was the UK found to have the lowest number of eBooks available, it also had the highest average cost per loan.”

It goes on to conclude that: “Overall, the UK has the least attractive licence terms, the highest prices, and the lowest availability.” 1,2

The second, separate problem in the UK is that public libraries are in a weak position, legally, to do anything about this. In 2017, when the UK amended its law and extended Public Lending Right (PLR) payments to authors for eLending– the law made it clear that only licensed eBook PLR payments could be made.

“It is a law that locks our public libraries into only being able to lend licensed eBooks,” says Ben, adding: “And it’s a particular frustration because it undermined a pre-existing European Court of Justice (ECJ) judgement that potentially opened the door for controlled digital lending. This would allow libraries to digitise physical books and lend them digitally on a one-book-one-user basis) – a freedom that remains available to all EU public libraries but, now, not the UK. Away from issues of undermining access to the work of authors, it also doesn’t help authors who will receive no PLR payments if a publisher chooses not to license to a library as we see with Hachette.

“The UK’s failure to use the ECJ ruling to push for better copyright laws and develop comprehensive eLending models underlines the importance for the global library community to invest in legal and policy activities and expertise.”

He said the lack of focus on copyright and legal policy has left the community and the public in a worse position regarding eBooks than would otherwise have been the case. He said this happened despite input into the process from many relevant UK library bodies, including the BL, CILIP and Libraries Connected, and DCMS – the responsible ministry for public libraries in England. However, he hopes KR21 will go some way to keeping the wider profession informed and coordinated in its actions.”

Dutch courage

The door to potential controlled digital lending (CDL) in European public libraries was first pushed open by the Dutch Public Library Association (VOB). It took action when the Dutch government drafted a law for the creation of a digital library lending platform – based on research that claimed that it was not lawful for Dutch libraries to lend eBooks. VOB (Vereniging van Openbare Bibliotheken) challenged this, saying it was already lawful for libraries to lend any eBook and took the case all the way to the ECJ. The final 2016 verdict was in favour of VOB.

And while the judgement appears to make CDL possible, Ben said: “There are still lots of unanswered questions, the ruling doesn’t refer to how libraries acquire the books, only that they are acquired lawfully and are downloaded from the library servers on a ‘one copy, one user’ basis in order to mimic the loan of physical books. And I’m not aware of any European-based controlled digital lending service having been launched as a result of this ruling.”

He said that the library profession in Europe could have done more to maximise their own interests as a result of this landmark case, but again he hopes KR21 will go some way to helping libraries across Europe understand their rights and the level of risk they face if publishers make legal challenges. He said that KR21 will encourage this boundary pushing activity, but added: “We see a CDL law as the best solution for libraries because it creates the right for libraries to do what they’ve done for thousands of years – which is to undertake collection development and lend in the way they should. Without being undermined by issues like DRMs, bundling, refusal to license, and exorbitantly high prices.

“So, KR21 is focusing on legislative change across Europe. In the case of eBooks the library sector should be advocating for libraries to be able to function as libraries in the digital era which means freedom to purchase, collection development and lending and that’s to be found through CDL. We are planning for our first webinar to be on eBooks and I will be talking about the ECJ ruling in the VOB case, we will have a colleague from #eBookSOS who will be talking about that excellent campaign and Chris Freeland from the Internet Archive will be talking about Controlled Digital Lending.”

Publisher watching

Ebook licensing is one of the four areas that KnowledgeRights21 will look at. Another is the closely related issue of making sure existing exemptions under copyright law are not undermined by publishers’ licensing contracts or technological protection measures (TPMs). Copyright exceptions are an area of particular interest to Ben whose PhD is a comparative study of intellectual property law in Europe, Japan and the US regarding the future of AI. He worked on a two-year European Commission funded project looking at the barriers to further uptake in Europe of data analytics and AI technologies and in 2008 he was the first person in Europe to call for a copyright exception for text and data mining.

He gives Pearson as a recent example, saying: “At the end of last year it announced that new subscribers to eBooks would not be allowed to make any copies even though UK copyright law clearly allows researchers to make copies under limitations and exceptions. Pearson has backtracked after being challenged by London South Bank University, and my understanding is that Pearson is actually changing their entire policy for universities and reinstating the ability to make copies.

“The point now is not just that this happened, but that although Pearson did the right thing, the UK Government couldn’t have enforced it. We found this out a number of years ago when LACA supported a researcher at LSE who wanted to do text and data mining of a website and the Captcha technology was preventing it.

“At that time EU law prevented the UK government from intervening. In the new EU Copyright in the Digital Single Market Directive passed in 2019 that is supposed to enter into force in June, the bit of EU law that prevents governments from intervening is amended and no longer relevant thanks to European library lobbying citing the LACA supported case. However, due to Brexit, the UK will not transpose the new Directive, so its copyright law still has this contradictory provision for exceptions to TPMs.

“So, for text and data mining and analytics using AI, the government still can’t intervene to allow data mining of Pearson books if Pearson had said no. It means that a body of knowledge held by libraries and used by data miners who come to libraries for access can still be removed at any time by publishers.”

Joined up

Another factor is the extent to which these problems affect other sectors and their combined economic impact. Ben says studies have been done into the economic value of making information accessible – one suggesting that the absence of academic research to SMEs adds an average 2.2 years to product development3 – and although hard to calculate, the combined effect of eBook licensing policies on the effectiveness of government spending and the ability of science and business to innovate is likely to be significant.

Reiterating the research finding that “the UK has the least attractive licence terms, the highest prices, and the lowest availability” for public libraries, he says: “Wherever the UK stands in terms of university libraries they face eBooks at 10 times the price of paper books for a single seat licence, refusals to license, the bundling of titles and this all puts huge pressure on university library budgets.

“So, difficult decisions on acquisitions are going to be made by universities which are going to have an impact on research. If a library cannot purchase a book then an individual has to buy it. In my own case I needed a particular book for my research but OUP refused to license this book – ironically on open source software – to Bournemouth University. This was in the middle of a pandemic. So I had to either buy it for £120 or, what I actually ended up doing, buy it second hand for £60.

“Multiply me, my time, my money, across a lot disciplines and you can imagine there are significant costs and barriers created by this. It all adds up to not a very rosy picture, the antithesis of quick and open access to knowledge that theoretically digital heralds. This is why of course many in the library sector support open access and controlled digital lending.”

What next?

The law is unclear. It either needs to be tested in the courts by librarians, or to be clarified by government. Or the law must be changed. These are the challenging options that face the library sector if it wants to maintain the vanishing status quo. Despite the current problems, the complexity and the lack of resources, Ben is optimistic.

“Librarians traditionally have been loath to get involved in policy but, thanks to LACA’s entirely voluntary efforts we’ve had amazing success in the 2014 copyright reforms; the pan-European library bodies like LIBER and SPARC Europe and IFLA were also successful in the 2019 Copyright in the Digital Single Market Directive. Librarians’ lobbying also led to the 2012 Orphan Works Directive, and we achieved important changes to the directives concerning public sector information. So, we have a great track record of effecting legislative change.”

He also points out that “copyright law is updated continuously. For example, Brexit caused the loss of the EU cross-border orphan works exception, so UK copyright law was amended in 2018 with effect from 1 January 2021 to remove it. We are also aware that the Intellectual Property Office (IPO), because of Brexit, is likely to do a consultation and update on the UK copyright law having left the EU. So now is a good time for people to write to MPs and the IPO and to keep up the pressure.

“The big target is for libraries to get CDL rights, but the removal of the link between PLR and licensed eBooks only would at least put the UK on a par with some other EU states, giving its public libraries the opportunity to benefit from the content of the VOB’s ECJ ruling when and if it is tested.”

Another strand that is being pursued by #eBookSOS, with some support from CILIP, and which Ben says will also be taken up by KR21 “is that this clearly is not a well-functioning market. A licensed, copyright-law-based monopoly, sometimes choosing to sell to a consumer that has to buy and sometimes choosing not to. Libraries can’t suddenly decide to change their business model – they have to buy books. So we don’t have a well-functioning market in the digital era and KR21 will encourage the relevant regulators to look into it.” IP

1. Giblin, R. et al. Available, but not accessible? Investigating publishers’ e-lending licensing practices. Information Research. 2019, 24(3), paper 837.

2. Giblin, R. et al. What can 100,000 books tell us about the international public library e-lending landscape?. Information Research. 2019, 24(3), paper 838.

3. Access to Research and Technical Information in Denmark