Today, a paper copy of Britney Spears’ bestselling memoir “The Woman in Me” would cost your local public library $17.81. In contrast, an electronic copy of the same book would cost your library nearly four times more: $64.99 per copy. Your library would also lose access to the e-book after only two years.
Why does it cost libraries so much more to rent an e-book than to buy a physical copy? In short, the laws that protect libraries’ ability to purchase and loan paper books do not apply to their digital counterparts. Without adequate regulations, publishers charge libraries exorbitant sums for every e-book acquisition, straining budgets and forcing libraries to make difficult decisions about which e-books to offer. Furthermore, libraries risk becoming obsolete if they are unable to transition to the digital age, ultimately threatening the fulfillment of their important civic role. Thankfully, there is a solution: bipartisan legislation that extends libraries’ paper book rights to e-books.
Since the early 1900s, federal laws have protected U.S. libraries’ ability to fairly purchase and loan paper books. Under the “first sale doctrine,” owners of physical editions of copyrighted works have the right to rent, sell, or loan them to other parties. In other words, libraries have the legal right to lend their paper books as they see fit. Under this doctrine, publishers typically offer libraries discounts on paper books.
Protected by first sale doctrine, libraries have long been a central pillar of American communities. According to a 2015 Pew survey, 90% of Americans ages 16 and older believe the closure of their local public library would have an impact on their community. Meanwhile, 94% of Americans agree that public libraries improve a community’s quality of life and are key to promoting literacy. As one of the last free-to-enter public spaces, libraries have emerged as a key “third place” — community-building spaces separate from the home and the workplace — in modern day America. Beyond just lending books, libraries now offer important social services, provide free computer and internet access, fight against censorship, and work to rebuild trust in civic institutions.
However, to maintain their relevance in the digital age, libraries are under pressure to meet growing consumer demand for e-books. A 2022 Pew survey shows that the percentage of Americans reading e-books has nearly doubled in the past decade, with 9% of American adults exclusively reading e-books that year. Accordingly, libraries are working to increase their e-book collections: E-books comprised 30% of library materials in 2017, up from only 1.4% in 2008.
Unfortunately, the outdated first sale doctrine, last updated in 1976, does not address e-books and therefore hinders libraries’ efforts to buy them. Thus, libraries do not have an inherent right to purchase and lend e-books under federal law: They are at the mercy of publishers and must accept their sales conditions.
Upcharge libraries for the e-book version of a paper book? Done. Demand over $500 if libraries want long-term access to an e-book? Good idea! Only offer libraries e-books that expire after two years? Simple. Think that e-book loans are hurting your sales? Refuse to sell any e-books to libraries at all.
Such conditions make it financially unsustainable for libraries to acquire an adequate number of e-books. Take, for instance, the Los Angeles Public Library system: In fiscal year 2023, the system used over 60% of its total content budget — totaling $12 million — to purchase digital content and still could not buy enough. Simply put, even doubling spending for digital content in only five years failed to meet public e-book demand.
Thus, electronic materials now represent one-third of all library content spending, even as library budgets have stagnated. In the words of Ellen Paul, the executive director of the Connecticut Library Consortium, library e-book pricing is akin to the government “paying six times more for asphalt than a general contractor and every two years seeing the road disappear.”
In 2019, Macmillan Publishers announced it would only sell one copy of a new e-book to each library system, regardless of the number of patrons serviced. Though the American Library Association delivered a petition with 160,000 signatures to Macmillan’s CEO and lobbied Congress for help, the embargo was only lifted in March 2020 due to the global COVID-19 pandemic. Clearly, libraries do not have the power to fight e-book price gouging on their own.
Libraries and their supporters soon realized they needed legislation to address this pressing issue. By 2022, proponents had advocated for bills in nine states that would require publishers to sell e-books to libraries on “reasonable” terms. In fact, aided by strong bipartisan support for libraries, such legislation passed in Maryland and New York, with only one legislator voting in opposition.
Unfortunately, the federal government has complete control over copyright law. Just as it can use first sale doctrine to give libraries access to physical books, it can also prevent state action that improves e-book accessibility. In fact, since no federal legislation has been passed to apply first sale doctrine to e-books, the default federal rules are still in place: E-book publishers have an absolute right to sell their e-books however they choose, and there is nothing states can do about it. Given this legal landscape, a federal judge struck down Maryland’s law in June 2022, while New York Gov. Kathy Hochul vetoed her state’s law in expectation of a legal challenge.
Despite such setbacks, library advocates in at least five states have begun advancing new legislation aiming to protect libraries from exploitative e-book conditions without violating federal law. However, only the federal government can require publishers to sell their e-books to libraries, meaning national legislative action is necessary to ensure libraries gain equitable access to e-books in the long run.
If Congress does not act, the coming decades will see a hollowing out of our libraries, as they become increasingly irrelevant simply because they cannot afford to evolve with the digital age. Congressional action can enable libraries to serve their vital civic role for decades to come, ensuring equal access to knowledge for all Americans.
