Saturday, March 30, 2013

Bollocks, basically: The Sieghart Report on UK libraries and ebook lending

Last year the UK Culture minister commissioned a panel of library and publishing industry representatives to investigate e-lending by public libraries in England and to make some recommendations.

The panel was chaired by philanthropist, entrepreneur and publisher William Sieghart, and their rather slim and insubstantial report was published this week.

The key recommendations were:

·       A number of pilots in 2013 using established literary events should be set up to test business models and user behaviours, and provide a transparent evidence base: all major publishers and aggregators should participate in these pilots.

·       Public libraries should offer both on-site and remote E-Lending service to their users, free at point of use.
·       The interests of publishers and booksellers must be protected by building in frictions that set 21st-century versions of the limits to supply which are inherent in the physical loans market (and where possible, opportunities for purchase should be encouraged).  These frictions include the lending of each digital copy to one reader at a time, that digital books could be securely removed after lending and that digital books would deteriorate after a number of loans.  The exact nature of these frictions should evolve over time to accommodate changes in technology and the market.

Frankly, this is staggeringly lame. Its main thrust is to ensure the publishing industry remains unshaken and unstirred by the emerging e-lending practices of libraries. It is profoundly protectionist and conservative. .

I can't imagine this report will garner any respect in the wider library community. It's bollocks, basically.

Firstly, it doesn't intellectually grapple with the arguments at all. It blithely assumes that 'friction' is necessary or the whole publishing industry will collapse.

It recommends pilots be set up, and, incredibly, 'all major publishers and aggregators should participate..' Why? The business is happening. Librarians know what's happening. Publishers know what's happening. And if no credible data is being collected in the UK, well, no need to panic. There's plenty of quantitative stuff (Pew, mainly) being collected in the US. There's nothing so strange about the English, surely, that they need to reinvent the wheel.

As for the recommendation to emulate analogue 'frictions' in the e-lending world, this is a highly contentious issue that should not be simply accepted as a starting point. Perhaps such contrivance is not really necessary? We'll never know from reports like this one.

A far better and more productive, but no doubt vulgar, way to proceed would be to just let market forces prevail. Why not let the publishers and librarians fight it out between them, and allow industry norms to develop as they eventually will. The more courageous and progressive publishers will blaze the trail and the dead-headed rest will eventually follow.

There's no 'role for government' here. But our UK colleagues love this sort of stuff. Remember the Net Book Agreement?

Thursday, March 21, 2013

Supreme Court Decision in Wiley Importation Case

The background:  a Thai national studying in the US imported from Thailand, and subsequently sold on eBay, 600 copies of a Wiley textbook that had been reproduced by Wiley Asia in a cheaper edition and priced for the local Asian market. Such International Student Editions (ISE's) are common in the Higher Ed market. 

The price he charged his customers was obviously a lot cheaper than the US edition available from US campus bookshops.

Wiley took him to court and won. They also won on appeal. Both judgements rested on section 602 of the US Copyright Act that quite explicitly prohibits unauthorised importation of lawfully made copies of works.

However the student, Mr Kirtsaeng, was not satisfied and applied to the Supreme Court for a hearing. 

His argument was that another, more fundamental, section of the Act (109) had priority and should have determined the outcome of the case. This section deals with the 'first sale doctrine', commonly known as the 'exhaustion' of rights when the work is sold. When the customer buys the book all ownership rights are transferred. The publisher relinquishes any further control over subsequent selling, lending or hiring activities (but not copying). Thus libraries, second hand bookshops, museums and other entities can legitimately trade in the property without seeking the publisher's permission. Kirtsaeng also contended such exhaustion was global, thus enabling international trading.

The Supreme Court's judgement, in its majority and dissenting opinions, is a fascinating exploration of all these conflicting issues. Of course it benefited Kirtsaeng to focus on exhaustion, and it benefited Wiley to focus on importation.

The majority decision privileged the notion of exhaustion, thus allowing free and open importation.

The minority view distinguished the two principles and opted to privilege the prohibition of importation thus sidestepping the exhaustion issue.

In the end the argument seems to have rested on differing interpretations of Congress's intentions when framing both sections.

Congress will no doubt now be lobbied by publishers and other parties to clarify its intentions into law by strengthening the importation prohibitions.

Australia has clear importation provisions - the infamous Parallel Importation Provisions (PIRs).

So as in Australia, the debate in the US should be about whether such prohibitions are worthwhile or not, i.e. whether they do more harm than good. It should never be about rights exhaustion.

It's always been my view that Australia's PIRs are harmful to the economy and consumers and should be repealed. They operate to protect over-pricing and under-servicing by uncompetitive publishers.

However it also seems pretty clear to me that the commercial imperatives in the US are fundamentally different, and justify restrictive importation provisions. Prices in the US, particularly for trade books, are low by international standards, so the importation restrictions are not working to prop up prices to uncompetitive levels. 

For educational materials the ability of publishers to price low in developing countries is an imperative that should not be undermined by unrestricted importation back to the the US. The world needs these materials to be available at differentiated prices to ensure affordability by local students. Publishers should be able to stop these low cost versions from being able to be re-imported.