Books are Not Floor Wax and Road Salt

One would think this is obvious, particularly to a librarian, but perhaps not to Douglas Lord, President of the Connecticut Library Association (CLA). In a letter addressed to the state assembly advocating passage of H.B. 6829, Connecticut’s version of similar bills proposed (and shot down) in other states to address alleged unfairness in eBook licensing to libraries, Lord writes:

It is very important to note that this legislation has nothing to do with copyright, it is a matter of contract law. In the same way that taxpayer funds are treated preferentially with all other state contracts – from floor wax to vehicles to road salt – the same should be true for electronic content. [Emphasis included]

Although the Connecticut bill does not require publishers to license to libraries in the state, it contains several provisions defining various publishers’ licensing models as “unfair trade practice,” which is tantamount to a state compulsory license, which means H.B. 6829 is preempted by the Copyright Act. So, it has something to do with copyright law. In fact, although I am sure Lord does not sincerely equate books to floor wax and road salt, his disregard for the unique cultural value of the former may explain his absurd allegation that copyright law is not implicated in a state bill about contracts. Every contract negotiated for the use of copyrightable works rests upon the author’s exclusive rights enumerated in Section 106 of Title 17. So, Lord’s declaration is either intentionally misleading or naively misguided.

Notably, Lord’s letter reiterates the ambiguous rationale that has been proffered by every advocate of these bills in every state so far—i.e., the difference between the retail price of an eBook purchase compared to the licensing models that publishers offer to libraries. He states, “Consumers pay, on average, $12.77 for eBooks from retailers like Amazon. The average cost for a public library for the exact same product is $45.75.” Indeed, if one does not look beyond those two numbers or gather any relevant community information, the price comparison looks outrageous, even extortionate.

But to address this issue, I did my best to examine the market in my own region served by the Mid-Hudson Library System and found that a) less than one-third of the MHLS community accesses the library system for books of any kind; and b) that the average eBook cost per read is ~$1.06. And apropos the big picture for the taxpayer, it is notable that maintaining a library’s collection—both physical and electronic—is usually a fraction of its operating costs. To quote my post looking at MHLS:

The data collected in the Institute of Museum and Public Services (IMLS) Public Library Survey reveals that libraries’ costs are increasing for personnel and general operating expenses while costs are trending downward for collection materials—especially the cost of ebooks and audiobooks. Noting that most libraries spend an average 10% of their annual budgets on their collections overall, an article in Wordsrated summarizing the IMLS Survey states, “The drop in price per item is due to library collections becoming increasingly digital. This is because the price per digital item has declined significantly. All while the average cost per book increased 10% since 2003.”

While $1.06 per read does not seem extortionate, I do not claim to know whether that price is “fair to the taxpayer” in New York or Connecticut or anywhere else. But that’s my point. No advocate of these eBook bills, to my knowledge, has attempted to demonstrate a critical need for this legislation based on cost/benefit numbers, which is odd when one is alleging unfair use of public funds. And I suspect that’s because these bills are not directed at solving a real problem but are instead the hobbyhorse of anti-copyright activists like Jonathan Band and Kyle Courtney. Consequently, it is no surprise that advocacy of these bills, including this letter from CLA, repeats the vague tautology that publishers are extortionate and usually ignores the interests of authors.

Here, Lord goes a step further and claims that “Authors get no added royalties or income from these sales.” Not true. Authors’ contracts include revenue from eBook licensing to libraries, and the author’s percentage of eBook revenue is usually higher than her cut from physical book sales. Plus, those percentages typically increase as sales go up, advances are covered, etc. So, I am not sure whence Lord’s assertion comes, but it is consistent with the logic behind this bill—that books are like other commodities, and the author’s pecuniary interests are not directly associated with her copyright rights.

As I’ve repeated in nearly every post on this topic, the libraries should be careful what they wish for when it comes to eBook licensing and, if they hope to remain relevant, should avoid putting too many eggs in the digital basket. The logic is not hard to follow. If 90% of the cost of keeping libraries open is not about the collection, and the digital collection grows too large, how long before taxpayers figure out that facilitating eBook loans can be done with a website and without those expensive buildings and librarians? After all, some taxpayers may think that a former library would be a handy place to stockpile floor wax and road salt.

Photo by: AndreyPopov

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