Are Libraries the Enemy of Authors and Publishers?

As regular readers of this blog will know, I am unabashedly and unapologetically pro-©, pro-creator, pro-author, pro-artist, pro-publisher and a strong supporter of our cultural and entertainment industries. I am also pro-public library. This raises the question of what to do about publisher Kenneth Whyte’s long and controversial opinion piece that appeared in the Globe and Mail on July 25, “Overdue: Throwing the Book at Libraries”.  (Byline: “As important as public libraries are to civic culture, the good they do is made possible by being a net harm to literature, Kenneth Whyte writes. Libraries are overdue for renewal”). 

Should I refute his criticisms of this venerated public institution? Others, including not surprisingly librarians themselves, have already done that. I could try to defend Whyte’s thesis, that public lending libraries undercut booksellers to the detriment of authors and publishers by giving readers for free what they should be paying for. But then his description of libraries as “pimping free entertainment to people who can afford it” becomes a little difficult to defend, even allowing that he may be deliberately using strong language for effect. I could simply ignore it, as it appears many others in the copyright world have done (and as a couple of friends suggested that I also do). After all, attacking libraries is not a helpful tactic in dealing with a public that is not always convinced of the benefits of copyright to society, and won’t win authors and publishers many friends. Techdirt, a notoriously anti-copyright publication has already jumped on Whyte’s article accusing him of being a “copyright maximalist” who hates libraries. 

Now since you are reading this blog, it is obvious that I did not take the friendly advice to avoid wading into the debate on Whyte’s opinion piece. Why? Because the issue he has raised, which is far from being cut and dried, intrigues me. There are many shades of grey on this one. Whyte’s piece is not the first attack on the role of the public library in the book trade, only the most recent. In Britain a few years ago, when British libraries were facing a funding crisis, popular children’s writer Terry Deary claimed that libraries had outlived their usefulness, being relics of the Victorian age when there was widespread illiteracy. He is reported to have said that: “People have to make the choice to buy books. People will happily buy a cinema ticket to see Roald Dahl’s Matilda, and expect to get the book for free. It doesn’t make sense”. 

There is little doubt that libraries do hustle for business, trying to broaden their appeal to consumers to justify their need for public funding, and this can make it sometimes appear that they offer (unfair?) subsidized competition to booksellers. A good example is this clip from “Curbside Larry” for the Harris County Public Library in Houston, TX. Yes, it’s hilarious and no, it’s not a spoof (I think). It certainly gets its point across that “we got it, and it’s absolutely free”. So librarians are good marketers of what they offer. Better that than stock a product no-one is aware of. They can also be very protective of their own turf to the point of even objecting to free pop-up libraries in parks and people’s front gardens. 

One measure that has been taken in Britain, Canada, Australia and New Zealand–but not the US–to help offset the diversion of revenues away from authors and publishers because of library lending is the Public Lending Right (PLR) scheme. Under the PLR authors (and in some countries publishers) get annual payments based on the number of time their titles are loaned out by libraries. These payments come from general government revenues and are a form of cultural subsidy. Deary complained that the British PLR paid him only 1/6 of what he’d get from a book sale. At the time he was getting 6.2p each time his book went out on loan up to an annual maximum of £6,600. He complained that “if I sold the book I’d get 30p per book. I get six grand, and I should be getting £180,000”. (I’m not sure about his math; just quoting). As for the Canadian PLR regime, Whyte describes it as throwing “a few beans at guileless authors in compensation for the use of their works in libraries”, and urges that it be vastly expanded and adopted in the US. 

The Canadian PLR was instituted in 1986 and was the result of concerns at the time by authors that they were being “ripped off” by libraries. Of course not every book loaned out is a foregone sale, a point repeatedly made by librarians. Maybe a sixth of a loaned loaf is better than 100% of a loaf that wasn’t sold and brought in no revenue? Just how generous the PLR actually is clearly depends on your perspective. University of Ottawa law professor and blogger Michael Geist points out that the PLR is the gift that keeps on giving for authors, earning them some revenue for up to 25 years (as long as their books are in a library’s inventory and go out on loan), albeit with a diminishing percentage as the years pass. In Canada, seven “marker” libraries are used to determine the inventory. That said, according to Geist the average payout per author last year was only $822 with a maximum per title of just $467.88 and the maximum payment to an individual author of $4,500. No one in the literary field is getting rich from the Public Lending Right. The total funding envelope is just over $14 million annually so for the PLR to provide any meaningful income to authors, it would have to be increased many-fold. That is unlikely to happen, despite Whyte’s calls for “more”. 

It is not just libraries that stick in the craw of some authors. Second-hand book shops are also a target. Authors get no royalties from sales of second-hand books. In the US this is known as the “first sale doctrine”, (called “exhaustion” in Canada and some other countries) and this principle allows the purchaser of a book to do just about anything with it once it has been paid for;  keep it, give it away, lend it, sell it or burn it; anything except copying and redistributing it. The authors gets their royalty from the initial sale. Stores selling used books are common, and often they “recycle” books by taking back books that have been “gently read” against a credit that can be used to purchase more used books from them. I frequent one myself because it has a great selection of out-of-print titles, but if it’s a relatively recent title that’s also available online at Amazon or Indigo, or at a bookshop selling new titles, should you feel guilty if you pick up your copy second-hand? Some writers think so; others are more relaxed about it arguing that the most important thing is that a book gets read. 

As an aside, the same principle of exhaustion (i.e. once you buy a work, you can do with it what you wish without further reference to the author, except for not violating the author’s copyright) applies to works of art in Canada and the US. As I noted in an earlier blog posting, there is a push afoot in both countries to get a legislated “Artists Resale Right” whereby an artist would get a small portion of the sale proceeds when one of their works is resold. (A resale right exists in the EU, UK and Australia). One notorious case cited in Canada is that of the Inuit artist Kenojuaq Ashevak, who sold her famous print “Enchanted Owl” in 1960 for just $24. An original print of the work recently changed hands for over $200,000 but her estate gets not a sou. All the benefit from the increased value of her work as she became renowned in the art community accrued to galleries and previous purchasers, and this pattern is often repeated with artists whose work becomes sought after later in their careers. A resale right wouldn’t work for writers though because (a) it would be difficult if not impossible to track the resales and (b) books usually—but of course not always—go down in value as time passes.

But back to libraries. So far I have been discussing how libraries and authors relate mostly with regard to physical books. Lending of digital works opens up many new questions. In the case of an e-book, a consumer typically does not purchase the work but rather licences the right to read the work on a device. The copy on that device could be loaned to someone, but the device would have to be loaned as well. However when loaning a digital book, you can’t have your cake and eat it too. You can’t lend out the work or give it to someone else while still retaining a copy. Libraries have got into the e-book business in a big way, often licensing multiple copies of a work (under terms where they pay considerably more per copy than an individual user would), and then lending out these e-copies to borrowers. However, it is important to note that if a library licenses ten copies of, say, The Handmaid’s Tale, only ten copies can be in circulation at any one time. One digital loan has to terminate before another digital copy can go out on loan to a new borrower. 

Despite this, many publishers are not happy and are concerned that the ease and ubiquity of library digital copies is cannibalizing e-book sales. The argument is that borrowing a physical book causes “friction” that can be alleviated by the consumer when opting for a purchase. Friction consists of inconveniences such as having to go to the library to pick up the book, often having to request it be put on hold, returning the book on time and paying a fine if not returned by the due date, etc. A digital book abolishes friction, as it can be downloaded at home from a library website and the download sunsets when the loan period is up. In an attempt to deal with this issue, in November of last year MacMillan announced that in order to encourage purchases it would withhold new digital titles from libraries for eight weeks after digital release to consumers, with the exception of one copy per library. This is similar in concept to the “windowing” strategy used by major film studios whereby the DVD or streaming release of a film is held back for a set number of weeks while the film plays in cinemas. That strategy is becoming less prevalent in the movie industry, in part because of concern that withholding the home entertainment versions encourages piracy as determined consumers try to skirt the rules to get access to pre-release streaming versions of popular films. Would delayed release also encourage e-book piracy, which is already a growing problem? It’s hard to say, and we may not find out, since MacMillan backed down after loud protests from the library community. However, COVID-19 was undoubtedly a factor and the policy could be revived in future in a post-COVID world. 

COVID was also the catalyst for another experiment involving digital lending and libraries, this time the so-called “National Emergency Library” launched by the Internet Archive in the US. Through its “Open Library” project, the Archive (and other libraries) had been pushing a project whereby it scanned books in its inventory and made them available for loan digitally, bypassing the normal licencing requirements for e-books. The issue of scanning a book to provide a digital version is controversial, with detractors saying this is a form of copying while supporters claim it is a fair use by simply changing formats. Until COVID hit, the Archive was careful to follow normal lending rules by allowing only as many copies into circulation as it physically had in inventory. This is known as “controlled digital lending” and requires that if a scanned digital copy is loaned out, the physical copy stays in the stacks. In other words, there is a wait list and a limit on the number of copies in circulation (no more than the number of physical copies from which the scans were taken). 

With the arrival of COVID, the Archive announced that it was suspending the normal practice of maintaining a wait list and would allow unlimited digital copies to go into circulation. While a few initially lauded the Archive for taking measures to assist consumers self-isolating because of the pandemic, it was quickly pointed out that this unilateral move hurt authors and publishers—who were not consulted– and was a case of giving away someone else’s property. Publishers had already loosened controls during COVID and brought suit against the Internet Archive accusing it of giving away what it did not own. The National Emergency Library has now been closed but the suit over controlled digital lending continues. 

Kenneth Whyte, however, was not complaining about the Internet Archive’s agenda to digitally scan and circulate books for free; he was complaining about taxpayer-funded competition from public libraries who lend out both hard copy and digital books in apparent competition with publishers and booksellers. One of Whyte’s suggested solutions is to impose a charge to use libraries, like a monthly Netflix subscription, with an exemption for low-income borrowers. In other words, institute a means test for library borrowing. Somehow I don’t think that is going to catch on. In fact to judge by the majority of the reaction to his op-ed, his views are not mainstream, even amongst publishers. Kate Edwards, Executive Director of the Association of Canadian Publishers wrote to the Globe and Mail to put on the record that;

Canadian publishers recognize that libraries are an important part of the reading ecosystem and a primary channel for book discovery….Library sales are also an important part of the publishing business model…Readers are best served when libraries purchase and promote a diversity of material, including books by local authors published by independent Canadian presses. Increased investment in and attention to these efforts are critical to building a strong reading and literary culture. Publishers and librarians are well poised to pursue these shared goals in partnership, to the benefit of readers, writers and local communities.” 

That sound you just heard was the rug being pulled out from under Whyte by his publishing colleagues. That said, many writers and independent publishers are in a perilous financial position, particularly with the additional challenges of COVID. Publishers, booksellers and writers face challenges from large online book marketers and digital publishers like Amazon, second-hand book stores, consumers who pirate hard copy and e-books, universities and public education systems that refuse to acquire copying licences arguing that their actions constitute fair dealing and, yes, libraries. However that is the ecosystem we live in with all its complexities, and to single out libraries as the main problem seems disingenuous. It’s not cut and dried as to who is right and who is wrong, if that is even the correct way to assess the situation. The situation is complex, combining several hundreds of years of publishing and bookselling trade practices, a hundred and fifty years of public libraries, and twenty years of the digital revolution. 

Changing the public lending model and the role of public libraries is an unlikely and frankly politically unacceptable solution to the problem. However, ensuring that authors get paid for the use of their work by educational institutions, and taking stricter measures against digital piracy and unauthorized copying are actions that could be taken. In the meantime, despite the financial challenges that authors and publishers face, I can confidently predict that books will continue to be written, published, and sold in digital and hard copy formats, both new and used, while being simultaneously circulated by public libraries. There are many paths to literacy. 

© Hugh Stephens 2020. All Rights Reserved. 

Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores.

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