The text below was prepared for the Danish Ministry of Culture’s Book and Literature Panel. On 3 May 2016, I was invited to Copenhagen to give a presentation about the state of e-book lending through public libraries in the Netherlands. After the meeting I wrote the text with some updated information. The text was finalized on 26 August 2016 and has been translated into Danish for a publication of the Danish Ministry of Culture. The original English and Danish language versions of the publication in which it was included can be downloaded from this site.
1. The public library landscape in the Netherlands
Since the turn of the millennium, the number of public library organizations in the Netherlands has declined considerably, from 544 in 1999 to 156 in 2015 (Statistics Netherlands, 2016). A policy program called Library Renewal (‘Bibliotheekvernieuwing’, 2000-2008) succeeded in arriving at a limited number of larger organizations through mergers of local libraries. Library organizations are providing public library services in multiple municipalities. The 156 organizations are currently operating
782 branches with a minimum of 15 opening hours per week
215 service points, opened 4-15 hours per week
55 mini service points, opened less than 4 hours per week
Public library membership in the Netherlands is a paid membership, at least for adults. Most library organizations offer free memberships for children and youngsters, but for those aged 16-17 it is common they have to pay a fee. From the age of 18 (19 in Amsterdam), a full membership fee is due, the height of which varies between library organizations and is also dependent on the service level. Typically, libraries offer a choice between three membership options: a regular membership, a cheaper reduced version for incidental borrowers, and a more expensive top version for library aficionados. As an example, in the public library of Amsterdam the corresponding rates are € 35 (€ 25 for 19-22 years and over 65s), € 20, and € 55 (€ 45 for 19-22 and over 65s). What is included in each of the membership versions is dependent on local conditions.
Only one in every eight euros of the total public library budget is paid by registered members.
It is important, however, to stress that the Dutch public library system, as elsewhere, is financed largely by the local, regional and national governments. In 2015, subsidies constituted over 82 per cent of the total budget of public libraries (519.4 million euros), whereas 12 per cent derived from membership fees (the remainder of the budget coming from provinces, other grants and contributions, and on-charged costs; the budget for the national e-book portal is not included in this sum). In other words, only one in every eight euros is paid by registered members.
Dutch universities have taken significant steps in the direction of open access publishing of academic work. At the close of 2013, state secretary (deputy minister) Sander Dekker of Education, Culture and Science took everybody in Dutch academia by surprise in announcing he would change the law in case the big science publishers wouldn’t co-operate in the transition to open access (OA).
Since long, the university libraries (together with the Royal Library) have negotiated with scientific publishers on a national level in the so-called UKB consortium. Until recently a delegation of library directors went to the negotiation table. Dekker’s announcement triggered university rectors to declare the big deal negotiations Chefsache, as the former German Chancellor Schröder used to call it, and to take over the lead. The seat of the library consortium was taken over by university rectors representing the Association of Dutch Universities (VSNU). Library directors were still involved, functioning as linking pin between the negotiators and the needs of professors, researchers and students.
Four big deals
And not without success. Quite progressive deals were closed with Springer and SAGE. Scholars working in Dutch universities can now publish their work in gold open access in all journals of these publishers without extra costs. In these two deals, a solution was found for the pressing problem of the financial burden in the transition phase. After all, having to pay article processing charges (APCs) alongside licence fees to continuing access to the non-OA articles by researchers from outside the Netherlands wasn’t too appealing. Springer and SAGE agreed to open up their subscription journals and their open access platforms for scholars working at Dutch universities and research institutions. The latter can publish their papers in open access without paying additional APCs while the license fees for the – now hybrid – subscription journals remains roughly the same.
A somewhat less rosy picture emerged from the deal that VSNU and Elsevier announced in December 2015. Basically, the contours of the ‘agreement in principle’, the details of which are yet to be unveiled, are in the same vein as those of the Springer and SAGE deals. Publishing in open access will be without extra costs for researchers with a Dutch affiliation. However, Elsevier negotiated out a ceiling percentage of 30% open access articles in 2018 that are to be published in a selection of journals both parties still have to agree upon. Whether this will be hybrid journals only, or also open access journals (Elsevier has quite a list of such journals, as well as a megajournal open to all scientific disciplines called Heliyon) is still uncertain. Regardless, the agreement leaves it up to the universities to decide which papers of which scholars are eligible for publication in open access and which are not. (There are more pleasant tasks for university administrators.) In 2018, a reassessment of the situation will be made by both parties to see which further steps toward OA – if at all – will be taken.
What surprises most is that the agreement is completely at odds with NWO’s new open access policy.
A few weeks ago, another deal was announced, now with John Wiley and Sons, Inc. Compared with the Elsevier deal, the conditions of this one are more favourable from the universities’ point of view. From 2016-2019 – one year longer than with Elsevier – researchers at Dutch universities and affiliated research institutions will have continued access to all Wiley subscription content. Also, the deal enables publishing 100% of the Dutch papers in open access in Wiley’s hybrid journals, the number of which will increase to around 1,400 titles. But here’s the catch: in Wiley’s hybrid journals only. Wiley does have a portfolio of full OA titles. However, these are not included in the arrangement. If authors with a Dutch affiliation insist on publishing their work in one of these titles, they will have to pay APCs like everyone else. What surprises most is that this agreement is completely at odds with the new open access policy of NWO. This organization, the most important Dutch science funder, discourages hybrid open access by actually stating that this form of OA publishing will not be supported with its funds. As for VSNU itself, its web pages about its open access policy do not even mention the hybrid option.
Will public libraries in Europe ever be able to lend out e-books to their patrons on their own terms? That seems a strange question, for in several countries lending e-books is already happening. Library patrons will wonder why they shouldn’t be able to borrow e-books in the first place, just like they are used to borrowing printed books. However, from a legal point of view a paper book and an e-book are different things. To cut a long legal story short, whereas lending out paper books is covered by a lending right exception in copyright law in most European countries, lending out e-books is not.
While some legal scholars still see possibilities for e-book lending within existing copyright law, most will say that the library exception to copyright law does not extend to digital content, including e-books. EBLIDA, the European Bureau of Library, Information and Documentation Associations, holds this view, as does IFLA, the International Federation of Library Associations and Institutions. In the Netherlands, the ministry of Education, Culture and Science commissioned a study on the matter in the preparation stage of a new public library law.
The conclusion of that study (report with summary in English here, blog post in English here is straightforward: ‘neither current Dutch copyright law nor the EU legal framework seems to leave room for e-lending without right holder permission. Of course, this does not mean that libraries cannot lend e-books, merely that this practice is not covered by a copyright exception at the moment and therefore requires agreements with authors and other right holders.’ (quote from the blog post by Kelly Breemen and Vicky Breemen of the Institute for Information Law (IvIR) at the University of Amsterdam).
Public libraries currently have no other option than to carefully manoeuver and try to make a deal which leaves a maximum of their principles standing.
The absence of a copyright exception therefore implies that public libraries and their umbrella associations must negotiate with right holders, usually publishers, the terms under which e-books and other digital content can be lent out to patrons.
Now let’s turn back to the question at the outset of this post: I added the words on their own terms because here is where things start to hurt. It is not that public libraries cannot reach agreements with right holders. The cases of Germany, the USA, Canada, Norway and (in pilot projects) the Netherlands and Flanders show that this is possible. What is at stake is the conditions under which it becomes possible. Library organisations almost always have to give up on some of the principles they formulated before entering the negotiations. Both IFLA and EBLIDA formulated principles that could guide their member organisations in positioning themselves. One of the more essential demands is that they have the right to choose themselves, from all titles that have been made available by publishers, which ones they will obtain for e-lending.
But as could be expected, in a situation without a copyright exception inscribed in the law, one is not in a position to put demands on the table and expect to get what one desires. It is the right holder side dictating what is possible and what is not, since the law grants them full control over what happens with ‘their’ content. Public libraries currently have no other option than to carefully manoeuver and try to make a deal which leaves a maximum of their principles standing. It comes as no surprise that the negotiation results are varying widely between countries.
This state of affairs leaves many in the public library world and in the responsible ministries worried. On 13-14 May 2013 I was invited to join and report on a meeting in Milan on e-books in public libraries and report on the meeting’s outcomes. A working group of NAPLE (National Authorities on Public Libraries in Europe) discussed the current state of negotiations between public library organisations and publishers and other rights holders. Five cases were presented and discussed: Flanders, the Netherlands, Denmark, Slovenia and Germany/the German-speaking part of Switzerland.
Even in this small ‘sample’, a great variety of options can be observed. In the scheme below, the NAPLE working group’s chairman, Jan Braeckman (director of Bibnet Flanders) and I have tried to summarize these options in a dozen dimensions. The table, which is available for download under CC-BY-SA, might be helpful for library organisations in preparing negotiation strategies. It might also aid in operationalizing umbrella organisations’ principles (‘this we recommend, that we would discourage’) before entering negotiations with right holders.
The Milano meeting made it clear that public libraries and their umbrellas are growing increasingly uneasy with the absence of legal provisions for e-lending. EBLIDA will start to campaign in the EU and in the member countries for the legal ‘right to buy and lend e-books at reasonable conditions’, now their attempt at reaching a memorandum of understanding with the Federation of European Publishers (FEP/FEE). A strong plea was made to continue on two paths simultaneously: in the long term, obtain the legal right to select and lend out books, and in the short term work out viable deals with publishers. This approach will put some more pressure on right holders to meet the libraries’ reasonable demands, provided that ‘Europe’ will actually start to make moves towards legally enabling e-lending.
For more information and guidance, the list of documents below (some of which were already cited above) from various sources may also come in handy. If you have other documents to add, please post them below or give me a hint.
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