The Federation of European Publishers supports the filing by the Association of American Publishers (AAP) of a suit challenging the Maryland law requiring publishers to license ebooks to public libraries on so-called “reasonable terms”

The Federation of European Publishers (FEP), gathering 29 national publishers’ associations in Europe, supports the filing by the Association of American Publishers (AAP) of a suit against the State of Maryland challenging the Maryland law requiring publishers to license ebooks to public libraries on so-called “reasonable terms,” set to go into effect in January 2022.

Similar calls have been made in several European countries. With the pandemic, the recourse to ebooks has accelerated, while the budget of libraries has at best remained stable or at worst diminished. Publishers have made extraordinary efforts to serve readers to overcome these difficult times, yet these are not sustainable in the long run.

Public lending right, which in Europe is accompanied by a remuneration due at least to the authors, is a limitation to copyright, and as such it has to follow the three-step test of the Berne Convention, including not undermining the commercial exploitation of the work.

The terms of the licences agreed between publishers and librarians are meant to establish a level playing field with the online retailers, including independent bookshops with libraries. A behavioural study in Germany [1] has shown that when libraries’ patrons are using online library services they tend to buy fewer or no more books. In Europe, it is estimated that public libraries’ acquisition of trade books represents some 4 % (in the best cases) of the turnover of the sector while 96% is bought by individual readers. Any change in this balance puts at risks all authors and publishers, as well as booksellers. At term, it is cultural diversity that risks being seriously affected. This is why German authors have started at the occasion of the last Frankfurt bookfair a campaign FAIR LESEN.

The US is bound by its legislation based on the WIPO Internet Treaties; this includes the 1998 Digital Millennium Copyright Act (which preceded the EU 2001 Copyright in the information society Directive). European publishers are worried that the law would apply to foreign authors, unduly encroaches upon the author’s exclusive right to control the transmission of his/her creative work, and raises serious concerns regarding compliance with the three-step test. Intergovernmental leaders paved the way for the very innovations that led to ebooks and audiobooks, and which will, no doubt, lead to future exciting formats made possible by a free market. In the EU, a Court (CJEU) decision allows libraries to e-lend a born digital book under very specific circumstances and, on top of that, the judges have ruled that additional protections for the rights holders can exist at Member State’s level. Another Court (CJEU) decision has reaffirmed that the concept of first sale (exhaustion of rights) does not apply in the digital sphere.

For all these reasons FEP supports the AAP on its filing of a suit against the State of Maryland, challenging the Maryland law requiring publishers to license ebooks to public libraries on so-called “reasonable terms,” set to go into effect in January 2022.

Brussels, 15 December 2021