property policy.” One of KR21’s work streams will focus on eLending, including eBook prices, licensing and legislation. Other workstreams include rights reten- tion and legislation to enable OA, mak- ing 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 librar- ies into only being able to lend licensed eBooks,” says Ben, adding: “And it’s a
June 2021
Ben White.
particular frustration because it under- mined a pre-existing European Court of Justice (ECJ) judgement that potentially opened the door for controlled digital lend- ing. 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 under- lines 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.
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