When Amazon launched the Kindle device, enabling users to browse, buy, download and read e-books, newspapers, magazines, and other digital media via wireless networking to the Kindle Store, it took the world by surprise. The interest in e-books had grown and many publishers wanted to enter the e-reading market. Academic presses sought to find a way to smoothly transition from print books to e-print, making available their scholarly resources using the same medium. The desire not to be “left behind” in the digital world didn’t come without challenges.
One major challenge academic publishers faced was the problem of licensing, giving them the ability to obtain and distribute e-books at will within the library system while still maintaining control of their copyright. They wanted the right to grant access to their e-books via one of these three licenses:
- Annual access where the libraries pay them an annual renewable fee
- A one-time or perpetual fee
- A pay per use fee
In addition to the license, publishers also wanted to maintain control over the products they leased rather than transfer their ownership thanks to the digital rights management. They wanted libraries to give up their copyright law, as expressed under the Fair Use Act. Under the Fair Use Act, libraries gain full ownership rights of materials; they have the right to rent and make duplications of e-materials without having to obtain permission from the publisher.
It may come as a surprise to many but we do not own the e-books we buy. We rent them from the library or Amazon, quite contrary to what Michael Hart, the creator of e-books dreamt about. He believed that “Everyone should have access to the great works of the world… anyone could read those books anywhere, free, on any device, and every text could be replicated millions of times over. He dreamed that by 2021 he would have provided a million e-books each, a petabyte of information that could probably be held in one hand, to a billion people all over the globe—a quadrillion books, just given away. As powerful as the Bomb, but beneficial.”
Unfortunately, e-books are leased and not sold. They are therefore not covered under the First Sale Doctrine, recognized by the US Supreme Court in 1908. According to its definition, The First Sale Doctrine “refers to the right of a buyer of material object in which a copyrighted work is embodied to resell or transfer the object itself.” This doctrine only applies to printed work and does not apply to the e-book.
Since permission and licensing pose a problem, academic publishers needed to find different means of selling individual books and bundles of eBooks to academic libraries. So they began researching package deals. Libraries that buy these package deals have no choice buy pay for a group of titles, some not relevant to what they need to get the title they want. “Whether purchased or licensed through the publisher or an aggregator, this type of eBook tends to be made available through a web-based platform…. Many aggregators are promising perpetual access to licensed or purchased eBooks, but as the libraries are never in possession of the actual books, there is no true guarantee of this promise.”
Finally, long term preservation of e-books has also been a difficult challenge for publishers. It requires taking into consideration the texts, file formats, operating systems, hardware and software used to store the content. Many forms of digital media have a short life expectancy compared to books that last for five hundred years or even more. Electronic devices tend to fail but printed books don’t. “Even if an individual or library owns the bytes that compose the eBook, it is impossible to move those bytes from one platform to another (and, most libraries and individuals are likely to have licensed eBooks and do not actually own them). To preserve access to eBooks, the intellectual content of the book must be unpacked from its reliance on particular hardware and software and then that content must be securely stowed away and maintained by one or more preservation agencies (such as third party organizations dedicated to preserving digital content, national libraries, or cooperative digital preservation efforts among libraries).”
Digital Rights Management (DRM) is another challenge for eBook preservation. DRM is technology, often embedded in a file or device, which enforces the rules of use defined by the provider of the content. eBooks sold or licensed to public and academic libraries are also wrapped in DRM which limits the number of times the book can be borrowed, the number of users who may borrow it at one time, or even the locations at which it can be read. 
Unless the challenges of licensing, permission, preservation and digital right management are resolved, the publishing industry will continue to suffer. Although it has many hurdles to overcome, libraries are a good asset to them. Hopefully they can use the libraries platform to take advantage of the digital environment.
Johnetta B. Flomo