OK, it’s time for a little tough love for public library leaders. We haven’t been as visionary, vigilant and assertive as we need to be when it comes to mapping our future in the ebook world. And unfortunately, too much of our time has been spent reacting to business models that seemingly reflect only commercial interests, rather than boldly advocating for business models that also serve the public’s interests. Our primary role is to champion the rights of access for our users. Our ebook strategy needs a serious overhaul, and it needs to happen right now. Unless we move quickly, the technology divide that we’ve all been battling the last 20 years will look like a minor skirmish compared to the content divide that is mounting.

Why it matters

Let’s get a few facts on the table. First, Overdrive should be applauded for having the vision – long before anyone else – that ebooks would one day penetrate and gain a strong foothold in the public library marketplace. Without the network and conduit to publishers Overdrive has created over the last 25 years, public libraries would have been even farther removed from the dynamic world of ebook lending. That said, we are now subject to a virtual monopoly with one vendor/aggregator dictating the rules of engagement for the dissemination of commercial digital content to the public we serve. This commercial digital content includes ebook formats of the most current and popular titles that drive circulation activity in most public libraries.

Pat Losinski is the CEO of Columbus Metropolitan Library.

Second, we are all aware that several major publishers have refused to sell commercial digital content to public libraries via ebook aggregators. The result? Our users are being denied access to critical content and the role of public libraries could change forever if this troubling trend is not reversed. We need to catapult user access to commercial content to the top of our digital strategy or preside over our declining purpose in society. The perfect storm formula of a monopolistic environment and the actions (or more accurately, the deliberate inaction) of publishers have resulted in the creation of a significant shift in public policy in this country. After more than 100 years of public libraries circulating materials to users, we are no longer able to provide access to critical content that now exists in digital form. As a result, two very distinct scenarios are emerging in the communities we serve. Affluent users in prosperous neighborhoods have universal broadband access, numerous ebook hosting devices, and a credit card with the disposable income to acquire whatever content they want. Low-income residents in poorer neighborhoods do not have this sequence of resources and run the risk of not being able to access digital content that will allow them to fairly participate, compete and contribute to the digital economy/world. This content divide goes against the very principles that attracted so many of us to this profession –supporting democracy by providing access to information in the broadest possible context. I’ve tried to make the argument directly to non-participating ebook publishers that the “friction” they seek in the ebook circulation model is present. Like the analog book circulation model in public libraries, we have a “one user per one copy” model for downloading ebooks. In the traditional model, when users visit the library and find all hard copies checked out, they either add their name to the reserve list (often prompting the purchase of an additional hard copy when holds-to-copy ratios are exceeded), find an alternative title, or purchase the book from a commercial source. In the ebook model, this same sequence of choices is available to customers: place a hold for the reserve list, move on to a different title, or purchase. With many public libraries willing to offer a “buy it now” option on their online catalog for waitlisted ebooks, you would think that publishers would welcome this new commercial tack. I’ve yet to convince the publishers reluctant to sell us ebooks that this is indeed a win/win. While our commercial digital content focus needs to shift from our institutional interests to our user interests, it is worth noting that even the present path of spotty ebook availability is bound to have a profound impact upon our business model. I’ve never really tried to calculate the percentage of Columbus Metropolitan Library’s (CML) budget that is devoted to managing our analog collections – but I’d wager that it is between 60-80 percent of our entire budget. Just think about acquisitions, catalog/processing, transportation, sorting, shelving, check-out/in and all of the people and equipment devoted to these processes. Even though we have all done a great job of redefining public library roles through the addition of homework help and job help centers, technology training, community programming, etc., these activities are the 20 percent of our 80/20 rule. Our bread and butter for as long as anyone can remember has been that our users visit us, gather and check out content, leave our facilities to consume this content at another time and place, and return the content when consumed or prompted for its return. Ebooks change this dynamic and their growth will have a dramatic impact upon our service delivery for the future. Trends all around us hint at the tsunami that is forming: flat analog book circulation in public libraries, plateaued DVD investment by the industry, as well as many of the provocative findings in the latest installment of the Pew Research Center’s Internet and the American Life Project: Libraries, patrons and ebooks. If we pay attention to the “one-off” tangential news reports/projections from the likes of Forbes and Pricewaterhouse Cooper, we should all become motivated to act now.

How Could This Have Happened? It’s the law AND the format!

George H. Pike, director of the Barco Law Library and assistant professor of law at the University of Pittsburgh School of Law, has written extensively on copyright, the First Sale Doctrine, and the legal challenges surrounding the sale or lending of digital content. The First Sale Doctrine of copyright law allows the owner to vend, copy or distribute – essentially granting the right for public libraries to lend materials. Professor Pike writes, Digital content has created challenges for the first sale doctrine. Two important limitations in the doctrine have restricted its applicability to most forms of digital content. The first is the requirement of “lawful ownership.” Most software, databases, and other digital content is licensed, which limits the level of “ownership” that the user obtains. And second, the doctrine applies to a particular “copy” of a work. Digital distribution doesn’t transfer the particular copy of a work, but it makes a new, identical copy that is distributed. I’m not going to dive deeply into the legal issues surrounding the circulation/downloading of ebook content. But here’s how these issues begin to play out for public libraries. Do we own or lease this commercial digital content? Despite the efforts of the Kansas State Library, most of us are leasing access to ebooks through Overdrive as opposed to buying the content. While we haven’t quite determined how to reach the win/win formula for ebook aggregators and public libraries, Harper Collins 26 circulations model may end up being the best option for preserving the economics that will incentivize publishers to work with public libraries. Some of the most innovative ebook pilots to challenge the current state of ebook aggregator dominance (such as the Douglas County model) tout ownership of ebooks as paramount. But how do we provide access when a publisher just says “no” and refuses to sell to public libraries? Had this happened in the old analog world of book buying, we would have headed to our local (now rarely existent) bookstore, purchased the copy and placed it in circulation. That option is not available when we are unable to purchase commercial digital content through an aggregator or directly from a publisher. Due to the dominance of one –or just a few emerging – ebook aggregators, we don’t have the scalable alternative models that allow us to act as quickly as needed in this rapidly changing ebook environment. And what would/could happen if Overdrive was acquired by Amazon? The ability for libraries to represent and serve the interests of the public could be severely curtailed.

What is Our Best Strategy? Turn Conversations into Actions!

Let’s face it, our academic library colleagues have been way out ahead of us when it comes to digital strategy – and we should all be thankful for their foresight and leadership. The Digital Public Library of America has tackled a complex set of issues and has convened interested participants through their workstreams and conferences. The National Digital Public Library (NDPL) forum held in Los Angeles last year was a good first step in moving the discussion to the public library sector (NDPL summary: America’s Digital Future: Advancing a shared strategy for digital public libraries). The American Library Association has commissioned the Digital Content and Libraries Working Group to address the myriad issues related to the ongoing ebook explosion. And recently, the New York Public Library has attempted to influence key “business to business” technology applications in an effort to streamline access to commercial digital content. It’s remarkable that members of the public who do download ebooks from public libraries tolerate the clunkiness and complexity of our ebook downloading process. That tolerance is bound to wear thin as commercial lending options emerge as real competition to public libraries. I’ve been perplexed by our profession’s lack of focus on user access. Because at the end of the day, every business model or technological innovation that we create is trumped when a publisher refuses to sell digital content to public libraries. I’m in favor of the profession’s continued attempts to have professionally courteous conversations with publishers, Amazon, Overdrive, etc., about our concerns. But at the same time, we need to decide – will publishers and aggregators be allowed to dictate public policy for accessing content in this country, or will access remain a fundamental right of individuals? I emphatically insist it is the latter, which led to a recent decision to convene public library leaders to discuss the best way to achieve this goal.

Convening in Columbus

On June 8, 2012, a group of public library leaders met at CML to discuss options for determining a strategy that will ensure public access to all commercial digital content (ebooks, audiobooks, etc.). This informal gathering was an outgrowth of NDPL discussions and a summary white paper co-authored with Martin Gomez (former Director of the Los Angeles Public Library and driving force behind the NDPL forum). Embedded in this strategy was the decision to NOT focus on ebook business models, new pilots, or improved technology. Our recommendations and strategies call for an umbrella advocacy strategy with attention to five subcomponent activities: Public education Lobbying Research Coalescing Associations’ Initiatives Publisher/Author/Vendor Relationships These activities could begin to address the following questions: How might we ramp up a standardized national education program to explain the inequities of digital access to the general public? Should we actively engage in discussions with members of congress to educate them on the rapidly forming chasm between digital haves and digital have nots? Could a clearinghouse or repository of ebook innovations be created to assist with activities 1 and 2? How do we bridge and disseminate the ebook development efforts of national associations like ALA, ULC, PLA, COSLA and other initiatives by state library associations and entrepreneurial libraries? How do we expand upon the conversations between many public library leaders in our largest institutions (and/or those working in concert with library associations) and reluctant publishers? Participants at the June 8 CML gathering agreed to investigate the formation of, or affiliation with, an organization that could focus solely on driving these activities in support of the larger advocacy strategy to promote universal public access to ebooks. Yes, we need to continue our formal and informal conversations with publishers. We need to assure publishers that “one digital copy/one digital user” is a working model. And that public libraries pay for content (too many publishers still think we get content for free), support copyright compliance, and serve as a network of national ebook discovery portals that supports the commercial interests of authors and publishers. However, we must understand that if one or more publishers are able to continue to refuse to sell commercial digital content to public libraries, full equitable public access to this content will remain elusive. The creation of this ebook advocacy organization is meant to be temporary – intended to sunset when our vision of public access to all commercial digital content is realized. None of us can afford to continue the pattern that has emerged over the past several years of robust conversations about ebooks at national conferences, followed by a return to our local organizations and the ensuing lack of a sustained effort to create more avenues to commercial digital content. We need to continue to meet with publishers to discuss all matters related to our business relationship. We also need to let them know that we are pursuing the revision of appropriate federal laws to allow public libraries access to purchase commercial digital content on behalf of our users. This process of parallel conversations does not need to be viewed as adversarial. We need to remind publishers and aggregators that we take our responsibility to represent the public very seriously. It is our responsibility to ensure ebook public policy is shaped by public interests and not just the interests of publishers and vendors.

Conclusion

I’ve spoken to numerous groups and countless library customers about the lack of access resulting from publishers’ refusal to sell popular ebooks to public libraries. Almost universally, the response is “That’s not right,” or “What can we do about this?” When told about this scenario, a recently-retired, long-time member of Congress, said, “That’s a restriction of free trade.” I’m not sure if he’s right, but it illustrates yet another example of possible interpretations surrounding the ebook marketplace. I also understand and appreciate the cautionary approach of our publishing partners. They don’t want to make a critical “Napster-like” mistake that will destroy their business model or result in a single dominant distributor of all content in the future. But they must also understand that we will fight for the rights of every child and adult to have access to digital content – most likely through our national network of public libraries. The stakes are high. We can’t afford to continue to passively accept one-sided propositions from the publishing industry. The legislative or judicial path we must pursue will not be easy. As public librarians, we must rededicate ourselves to advocate for the public that has counted on us to do so throughout our history. Without such action, we just might be the next Borders or Blockbuster. Pat Losinski is CEO of Columbus Metropolitan Library in Columbus, Ohio.