Focus on the Fine Print

Contracts between libraries and ebook providers are often confusing, cagey and calamitous for libraries. Contract language can be difficult to understand, and ebook vendors may discourage negotiation.

So, what can a library do when faced with such a situation?

Negotiate Contracts into a Sword and Shield

Read your contract thoroughly, and if the language limits fair use, does not allow accessibility functions, or lacks user privacy protections, work to negotiate these clauses.

Some ebook publishers use contracts to override fair use, which is the built-in free speech safeguard in copyright law. If your library is entering into a new agreement and has some bargaining power, consider including a Fair Use Savings Clause in your contract, which protects uses such as criticism, commentary, news reporting, teaching, scholarship, and research by both the library and its patrons.

If your library is public or affiliated with the government, language that limits free speech through fair use override could even result in your library violating the free speech rights of your patrons! While this explicit connection between fair use and free speech is relatively novel, these libraries may use their constitutional duty to protect free speech as a tool in their push to include a Fair Use Savings Clause.

Keep an eye out for and negotiate certain contract language regarding digital rights management (DRM), which allows publishers and other rights holders to control what patrons do with their digital works. DRM has many uses, such as controlled digital lending, controlling access to only licensed users, or preventing unauthorized copying. However, DRM can also prevent patrons from accessing books on a device that uses a different software, restrict accessibility tools, or track user behavior. If your contract includes this language around DRM, you may be able to negotiate the types of restrictions put on the ebooks, including those that require a specific e-reader format, disable accessibility functions, and infringe on reader privacy.