Although almost all states passed copyright laws in the 1780s, the US Constitution wisely delegated power to the federal government to make copyright laws. Today, though, state legislators think they know better, and are proposing mandatory licensing of e-books at the state level.
However, the US hasn’t recognized state laws governing copyright protections for published books since the first federal copyright law in 1790. Congress alone may set terms for copyright protections, and under the Constitution, such measures must fail.
In direct violation of the Constitution, legislators in nearly a dozen states are attempting to subvert the uniform nature of federal copyright law with a state-enforced approach to copyright protections governing distribution of digital library books.
These patchwork interventions, however, would harm both the copyright holders and the public by stifling e-book accessibility in the long run.
Pricing Isn’t an Issue
A closer look at e-lending rates reveals that concern over current prices is unwarranted. While libraries often pay $50 for a two-year license permitting unlimited electronic checkouts—triple the amount readers pay per e-book with a personal license—this rate saves libraries a great deal of money in the long run.
If the average patron checks out an e-book for two weeks, the library can check the e-book out to 52 different readers during the two-year license, resulting in a cost of less than $1 per reader.
Without the pricing differences between e-lending and personal licenses, it wouldn’t make financial sense for authors to offer their works to libraries at all—especially when they could otherwise sell their e-books at $15 a copy to personal readers.
Under US copyright law, a library can’t purchase an individual license and lend that out—they must purchase a e-lending license, which expressly permits lending of the e-book. Copyright owners pulling works out of libraries altogether would pose a much greater threat to e-book accessibility than exists under the current parameters.
Even so, some libraries assert that e-book license prices strain their budgets and prevent them from stocking their digital shelves. But the numbers say otherwise. The total number of e-books available to borrowers in US libraries more than doubled between 2016 and 2020, to 804 million from 392.5 million. The growth was made possible in part by a decrease in the cost of e-books.
Global e-book distributor Overdrive reported in 2021 that “libraries achieved all-time records for circulation while lowering the average cost-per-title borrowed.” Libraries subject to price-gouging or unfair trade practices under federal copyright law would be unlikely to experience such expansion.
Publishers, authors, and songwriters have reaped the benefits of copyright protection for years, as they were able to protect their creative goods from illegal duplication and redistribution. As a result, American creators have flourished.
US companies and individuals made over $190 billion in foreign sales of copyrighted works and products in one year, far exceeding sales that year by other large sectors of the economy, including electronic equipment, agricultural products, chemicals, aerospace products, and pharmaceutical products.
But libraries are still making a fuss over the higher cost of purchasing institutional e-lending licenses, which they consider unfairly higher relative to the price of a personal consumer license for one or two people. Libraries and many lawmakers claim that the difference in license pricing between personal and e-loaning licenses causes inequitable access to e-books.
State legislators should adhere to the founding fathers’ vision for consistent copyright protection instead of advancing bills that unnecessarily intrude into the copyright marketplace and diminish authors’ ability to commercialize their works to audiences.
Otherwise, their laws aimed at ensuring equitable access to e-books would do the opposite by imposing inconsistent copyright standards across the nation.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Zvi Rosen is assistant professor of law at Southern Illinois University School of Law with a focus on intellectual property and copyright law.