Libraries and e-books: licences, lending and the law
A library can buy a printed book and lend it for as long as it lasts. With e-books and digital audiobooks it usually cannot. Why library e-books cost more, why they expire, and what the courts have said about digital lending.
How libraries lend printed books
For printed books, a library's position is simple. It buys a copy, often at a discount, and lends it to one reader at a time until it wears out. It needs no permission from the publisher to do this. In the United States that freedom rests on the first-sale doctrine, which lets the owner of a lawfully made copy lend, sell or give it away; other countries have similar principles, and some, including the UK and many EU states, also pay authors a small fee for library loans through a public lending right scheme.
The important point is that a printed book, once bought, belongs to the library. The publisher has no further say over how often it circulates.
Why e-books are different
A library does not buy an e-book in the same sense. It buys a licence from the publisher, usually through a library distributor, and the licence sets the terms. That is because first sale does not extend to making new digital copies, which is what lending a file involves. Our article on DRM and e-book ownership explains the legal background.
Publishers choose the licence terms for each title. The models in common use include:
- One copy, one user, perpetual: the library pays once and can lend the e-book to one reader at a time indefinitely, much like print.
- Time-limited licences: the library pays for one-at-a-time lending for a fixed period, often one or two years, after which it must buy the licence again.
- Loan-limited licences: the library pays for a fixed number of loans, after which the licence expires.
- Pay per use: the library pays each time a title is borrowed, which allows simultaneous borrowing but makes costs unpredictable.
- Simultaneous-use or bundle licences: many readers at once, often for a limited period or for older titles, sometimes used for book clubs or school reading.
Prices for library licences are typically higher than the consumer price of the same e-book, and the gap is often widest for popular new titles. Libraries argue that this, combined with expiring licences, means they pay repeatedly for the same book and can afford fewer titles. Publishers argue that digital loans are frictionless, never wear out and compete directly with sales, so pricing them like print would undermine the market that pays authors.
How you borrow a library e-book
For readers the process is mostly simple. Most public libraries in North America and many elsewhere use apps such as Libby from OverDrive, or similar platforms, to lend e-books and audiobooks. You sign in with your library card, borrow a title, and read or listen in the app, on a compatible e-reader, or in a browser. The loan ends automatically at the due date, so there are no late fines.
Because each licence is usually one copy, one user, popular titles have waiting lists. You place a hold and are notified when your turn comes. Many libraries let you recommend titles they do not yet license, and the number of holds helps them decide how many licences to buy.
The same apps typically lend digital audiobooks on similar terms.
Controlled digital lending and the Internet Archive case
Some libraries and archives proposed a different approach called controlled digital lending (CDL). The idea is that a library which owns a printed book may scan it and lend the scan instead of the physical copy, one reader at a time, keeping the printed copy out of circulation while the digital one is on loan. Supporters argued that this is the digital equivalent of lending the book the library already owns.
The Internet Archive ran a large lending library on this model. In 2020, during the early months of the pandemic, it temporarily removed the one-copy-one-reader limit in what it called the National Emergency Library. Four major publishers sued, and the case, Hachette Book Group v. Internet Archive, became the main test of CDL.
The publishers won. A federal district court ruled against the Internet Archive in 2023, and on 4 September 2024 the US Court of Appeals for the Second Circuit affirmed, holding that the Archive's scanning and lending of the books at issue was not a fair use. The court treated a digital copy of a print book as a substitute for the e-book editions publishers license to libraries. The case concerned 127 books that the publishers also licensed in digital form; it did not decide every possible use of scanning by libraries, but it made the CDL model, at least as the Archive practised it, legally untenable for in-copyright books publishers already sell as e-books. The Internet Archive did not ask the Supreme Court to review the decision.
Legislative attempts
Several US states considered laws requiring publishers who offer e-books to consumers to also offer them to libraries on "reasonable terms". Maryland passed such a law in 2021. A federal court blocked it in 2022, finding that it conflicted with and was preempted by the federal Copyright Act, because it effectively forced publishers to license their works. The lesson most observers drew was that change to library e-book terms would have to come through federal law, negotiation or market pressure rather than state legislation alone.
Where this leaves libraries
Libraries have responded in several ways:
- negotiating collectively, through consortia, for better licence terms;
- tracking which licence models give the best value per loan and buying accordingly;
- favouring publishers and distributors that offer perpetual or more generous licences;
- building collections of public-domain and openly licensed books, which can be lent without limits (see copyright and the public domain);
- supporting local and independent authors through self-published e-book programmes;
- continuing to buy print, which remains the one format they own outright.
Libraries have also become important places for help with digital reading itself: getting an app working, choosing a device, or finding accessible formats for readers with print disabilities.
What readers can do
If you want your library to have more e-books, the most useful things are practical: use your card, place holds and recommend titles, because that data drives purchasing. Libraries also generally welcome support for their budgets, which are set locally. And for books you know you will want to read more than once, a library loan followed by buying a copy, perhaps from a local bookshop, is a good way to support both.
Sources
- Library Journal, Internet Archive loses appeal in copyright case, September 2024.
- Authors Guild, final court decision in Hachette v. Internet Archive, December 2024.
- Publishers Weekly, Court blocks Maryland's library e-book law, February 2022.
- OverDrive, Libby.
- American Library Association.