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
June 2021
Main entrance to the court.
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 copy- right 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 infor- mation. 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 copy- right 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
References
1. Giblin, R. et al. Available, but not accessible? Investigating publishers’ e-lending licensing prac- tices. Information Research. 2019, 24(3), paper 837.
http://InformationR.net/ir/24-3/
paper837.html.
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.
http://informationr.net/ir/24-3/
paper838.html.
3. Access to Research and Technical Information in Denmark:
https://eprints.soton.ac.uk/272603/1/Access_Re- port_FINAL_published_version.pdf
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