Stealing Atwood: Ebooks in Public Libraries
September 16th, 2012
Michael Elcock of Sooke is the non-fiction author of A Perfectly Beautiful Place and Writing on Stone. He has written numerous articles for newspapers and periodicals in Europe and North America. Here, he discusses ebooks in public libraries and their potential impact on book sales and author revenues. Noting the crippling effect of free downloads on the music industry, Elcock wonders if our libraries are facilitating the same fate for Canadian writing and publishing. Though originally published in the Winter 2009 issue of BCBW, questions still abound on the topic of ebooks in public libraries.
I recently downloaded, at home, twenty-one copies of Margaret Atwood’s best-selling novel Alias Grace from a B.C. library. I did it by accident, but if I was able to stagger the sign-out dates, and renew each of these digital copies, Alias Grace could remain in my possession for a long time.
An Adobe program I freely downloaded from my library’s website enables me to distribute these copies to “up to six computers or supported mobile devices (such as a Sony® Reader).” The Adobe website tells me “if you reach the limit, contact Customer Service to increase your allowable activations.”
Victoria-born Julie Lawson, who has written more than twenty books for young people, had no idea that one of her books for children, Cougar Cove, first published in 1994, is also available, free, via digital download, from most libraries in the province.
Atwood and Lawson’s books are available through the BC government’s Libraries Without Walls program, launched in 2004 with an initial $12 million grant. The project involved the expansion of broadband across the province, and set out to improve access to books and journals. It has grown into a big initiative to increase the number of eBooks, audio books and periodicals in BC’s libraries—downloadable right to your home.
To develop Libraries Without Walls, extensive consultations were held with sixty-six libraries, several BC government ministries, unions, schools, municipal representatives and the BC Chamber of Commerce. Unfortunately, the folks who in Canada own the legal copyright to the primary assets (the books)—the writers—were not invited.
Dave Godfrey, a pioneer in electronic media and a former publisher, sees what the libraries are doing as an astonishing breach of copyright law. “Fundamentally,” he says, “libraries have no right to digitize the books they have in their stacks. In Canada, residual copyright rests with the author.”
Patrick Trelawny, a Victoria lawyer knowledgeable in the laws of copyright, confirms: “Libraries have not traditionally been granted any special rights by publishers or authors. Libraries purchase books just like any other consumer, and the transaction is simply covered by an invoice.”
Sections 29 and 30 of Canada’s Copyright Act define the circumstances under which libraries are able to reproduce in whole the works they hold. No reproduction is allowed “where an appropriate copy [i.e. a book] is commercially available . . .” The Copyright Act also specifies that libraries are NOT allowed to reproduce “a work of fiction or poetry or a dramatic or musical work.”
“Libraries,” Trelawny continues, “have the right to lend books out to their members, but not to reproduce them—unless they have specifically been granted the right to reproduce. Digitization is classed as reproduction.”
Canada’s Supreme Court stated in its December 2006 ruling in the $11 million class action suit won by writer Heather Robertson versus Thomson Corp, “. . . the Copyright Act should continue to apply in different media, but it does not mean that once a work is converted into electronic data anything can then be done with it. The resulting work must still conform to the exigencies of the Copyright Act.”
Nevertheless, the digitization of copyrighted material goes on. Paul Whitney, city librarian at the Vancouver Public Library, fully expects authors to be compensated according to their contracts with publishers. “The libraries have to assume that the publishers have their contractual house in order,” he says.
But who, in BC’s libraries, is taking responsibility for ensuring that authors’ copyrights are being protected? Who is ensuring that authors are paid fairly for this use of their work? And what about the libraries’ legal right to reproduce their holdings at all? Is everyone just turning a blind eye to Canada’s Copyright Act?
Alias Grace was originally published in Canada by McClelland and Stewart. The e-Book version of Atwood’s Alias Grace in my B.C. library is an American edition, published by Rosettabooks LLC of New York, and imported into Canada by a Cleveland, Ohio-based company called Overdrive. So our libraries are not necessarily providing digital versions of the Canadian edition of Canadian writers’ works.
Canada’s Parliament passed an amendment to the Copyright Act in 1997 outlining distribution rights. Section 27.1 (1) states, “it is an infringement of copyright in a book for any person to import the book where (a) copies of the book were made with the consent of the owner of the copyright in the book in the country where the copies were made, but were imported without the consent of the owner of the copyright in the book in Canada . . .”
The RosettaBooks.com website comes up blank if you search for Alias Grace, or for Margaret Atwood, which suggests that the US edition may be out of print. Has Atwood given her permission for this use of the US edition of her book? Has Rosettabooks LLC been legally assigned the e-rights that they’ve passed along to Overdrive, the US ‘aggregator’ that’s doing the digitizing?
Meanwhile it appears that almost none of the BC taxpayers’ money invested in this project has thus far gone to BC publishers, and very, very little of it—if any at all—has apparently gone to BC authors.
The Association of BC Book Publishers (ABPBC) has been trying to help its members to digitize and sell their backlists to BC’s libraries through the Best of BC Books Online project. The asking price for the backlists is $2 million, which would give BC’s libraries a “multi-user perpetual license. But the BC government—approached directly by the ABPBC—has not yet agreed to fund this aspect of the overall program, and the libraries may not be able to afford it by themselves. The money spent so far seems to have gone on purchasing from the American digitizers—and very few of the books involved are by BC writers.
Andreas Schroeder, who was instrumental in getting Canada’s Parliament to establish the Public Lending Right program in the 1980s, shakes his head at this. “I’m not surprised by this at all,” he says. “It’s because the libraries are buying their eBooks from two or three major jobbers, and they’re American.”
The ABPBC is now proposing that a limited sampler of 600 backlist titles by BC publishers be made available to some of BC’s libraries for a period of one year. The publishers, who have signed agreements with the ABPBC confirming that they have the legal right to digitize their authors’ works, will presumably have examined their contracts to make sure they have the rights to give these works away on such a scale as this, even if only for a limited period of time.
Electronic rights have only been factored into publisher–author contracts relatively recently. The great majority of books written in the 20th century are under copyright protection, and cannot legally be digitized without the consent of the author or the author’s heirs. But too many writers, and their representative associations, have been asleep at the switch while these huge digitization initiatives have been going on. Most writers who have signed away their digital rights to publishers have had little appreciation of the implications, and several to whom I spoke were as surprised as Julie Lawson to find that their books are available on-line, for free, from BC’s libraries.
Canada’s writers’ organizations need to ask: if our members’ books can be downloaded into any living room in the province, why would anyone bother to buy them?
Under Canada’s Public Lending Right legislation, writers receive some compensation for the loss of revenues from book sales when they make their works available for free public use through libraries. Electronic books may fall into a PLR grey area. Michelle Legault, executive secretary of the PLR Commission in Ottawa says the commission is taking a wait-and-see attitude. Andreas Schroeder believes that all books are a part of a library’s holdings, whether they’re in the stacks or on computer; that if they’re listed in the library’s catalogue, then they should count. But Benoît Rollin of the PLR
Commission says, “We only pay for paper books that are at least forty-eight pages long.”
Dave Godfrey doesn’t believe eBooks are adequately covered under the existing legislation. “If they wanted to avoid PLR payments,” he says, “the libraries could just take the hard copy books off their shelves and the writers wouldn’t get anything.”
The 144-year-old Cushing Academy in Ashburnham, near Boston, Massachusetts has done exactly what Godfrey has envisioned. Cushing has dumped its whole library of 20,000 books in favour of digitization, and spent thousands of dollars on large flat-screen TVs “that will project data from the Internet,” and on electronic readers—produced by Amazon and Sony—for the use of their students.
The future has arrived. UBC is already downsizing its hard copy library holdings in keeping with many other academic libraries here, in the US, and the United Kingdom.
CONTENT AND SECURITY
BC’s libraries are not restricted to digitizing books they already own. “Some libraries are buying digitized titles that are not in their stacks,” Paul Whitney admits. “They’re buying them from what we call ‘aggregators’—content distribution enterprises.”
One of the ‘aggregators’ they’re buying from is Birmingham, Alabama-based EBSCO, which claims its databases are more widely used by libraries than those of any other ‘aggregator.’ EBSCO sells books and periodicals in batches of several thousand, and BC’s libraries are among its customers. Most of the content sold by these aggregators is American. Mark Bingham, at the Victoria Public Library, told me that Victoria’s part in the digitization project is being handled by a Cleveland Ohio-based company called Overdrive.
So does the Victoria Public Library have cast-iron guarantees that the aggregator they’ve hired won’t be adding the Victoria Library’s inventory to its own bank of digital assets, and selling them on to, say, a library in Auckland, or Miami? Where and how have these aggregators acquired the eBooks and periodicals they’re selling? And when these collections are sold to BC’s libraries, does the money get back to the original publishers and authors?
Is ANYBODY monitoring these transactions? Retired Victoria librarian Barbara Chouinard recalls an American company called Blackstone which placed no limits on the number of copies of its products that were able to be downloaded by library members. She says some aggregators even sold digitized product into the libraries that could be downloaded onto CD burning programs. “Language learning and self-help books,” says Chouinard, “were the ones I was mostly aware of in this respect. But some of them even allowed library members to download novels which you could burn onto a CD; novels that were still under copyright protection. Some of my colleagues were stunned that you could do this. It was like allowing people to photocopy books—except that it was really easy, and dirt cheap.”
The use of Digital Rights Management technology supposedly prevents library users from copying the books they download, and passing them along to others. But DRM technology has serious drawbacks. Dave Godfrey, wearing his software developer hat, is dismissive. “These encryptions are pretty easy to break,” he says. Bill Thompson, a regular commentator on the BBC World Service program Go Digital agrees. “…the encryption mechanisms which underpin rights management systems can never be made effective or acceptable … The more technologically competent are perfectly able to strip off these protections.”
Twenty-one copies of Alias Grace are on my computer. How much will Margaret Atwood be paid? Given the current efforts of Google Inc. to grab the rights to reproduce all literary works by North American authors—unless individuals legally object by sending Google an opt-out letter—we would have to be naïve to assume American aggregators will be bending over backwards to ensure a fair deal for Canadian writers.
While researching this article, I couldn’t find anyone who was prepared to step up and take responsibility for ensuring that an author’s copyright was being protected through this process of acquiring digital books from US ‘aggregators’; that authors were being notified that it was happening, or to confirm that authors would be paid for the use of their work.
There can be little question that the digitization of books by libraries and their surrogates will have a significant impact on a writers’ ability to make a living—to the extent that some writers may wish to have library use specifically excluded in future contractual agreements with their publishers.
As for the publishers who are willingly allowing their backlists to be digitized by the libraries, or by Google, well, their future may be under threat, too. If you’re a ‘good’ publisher, then make sure that your inventory has not been digitised by a library or anyone else without your permission. Make sure your authors have granted you their electronic rights before you authorize anyone— even, and especially, libraries—to digitize those works.
And if you are a librarian, you should remember that you hold the works of writers in trust, and that trust rests entirely upon concepts of fairness and balance to the writers as well as to the library’s members. PLR exists to provide some of that balance, but if the trust is abused then the libraries may have to consider one potential end game—which is that the lending library as we know it may well disappear.
Libraries are only taking up valuable real estate after all. Who will need downtown libraries when the world’s intellectual works are available electronically in everyone’s home?
Eventually we may only need one library, not tens of thousands of them. And that one library will probably be the ‘benign’ giant Google Inc., except that its contents won’t be available for free. Google may be many things, but philanthropic is not one of them. Users will have to pay to read books. And Google could decide what you can read and what you can’t.
Andrew Carnegie will be spinning in his grave. Canada’s present government seems to be trying hard to bring this about through Bill C-61, which will change the laws, and the concepts, of intellectual rights. Canada’s writers, publishers and librarians still have the ability to shape the present, inequitable situation into something that works for all of them into the future, but only if they work together to do it, and only if they embrace the basic principles of fairness and balance.
The Status of the Artist Act, passed by Canada’s parliament in 1992, includes among its basic principles, “the importance to artists that they be compensated for the use of their works, including the public lending of them.” That’s all very well, but I prefer the protection offered by the Curse Against Book Stealers that you’ll find in the Monastery of San Pedro in Barcelona. It may be a bit extreme by today’s standards, but it’s worth remembering:
“For him that stealeth a Book from this Library, let it change into a serpent in his hand and rend him. Let him be struck with Palsy, and all his Members blasted. Let him languish in Pain crying aloud for Mercy and let there be no surcease to his Agony till he sink in Dissolution. Let Bookworms gnaw his Entrails in token of the Worm that dieth not, and when at last he goeth to his final Punishment, let the flames of Hell consume him for ever and aye.”
Essay Date: 2009