Librarians rejoice! The Supreme Court of the United States insisted in its Wiley v. Kirtsaeng decision that we can legally lend foreign-manufactured materials! The media noticed, too, at least the education media: both the Chronicle of Higher Education and Inside Higher Ed mentioned library lending prominently in their Wiley v. Kirtsaeng headlines and leads.
The case was about textbooks and textbook-market arbitrage, though. That’s worth keeping sight of, as Andrew Albanese’s Publishers Weekly coverage does. Extrapolating from reactions on all sides, what does the Wiley v. Kirtsaeng decision likely mean for the textbook-publishing business, and what can textbook publishers and libraries do if they don’t like that?
What’s incontrovertibly clear now is that the importation of physical textbooks into the United States from countries where they are cheaper to buy is legal. My impression is that textbook importation has until now been a semi-underground industry, mostly leveraging online auction services rather than hanging out online shingles of its own. That seems likely to change, as would-be Supap Kirtsaengs build legal businesses openly. In macroeconomic terms, this could mean that textbook prices in the United States will be knocked down to the lowest available worldwide price plus shipping costs and a markup for the importer—which sounds expensive, but, as Kirtsaeng vividly demonstrated, can be considerably cheaper than current U.S. prices for the same books.
What can textbook decision-makers do to keep their income high? Possibilities include:
- Raising print textbook prices to U.S. levels worldwide. These prices are not tenable in many markets, so textbooks will not sell, so textbook publishers will make less money. This doesn’t seem a likely tactic.
- Refusing to make print textbooks available anywhere but the United States, as suggested in the American Association of Publishers’ reaction to the decision. This might well produce a short-term income gain, especially in a post-Wiley world. Education markets are growing so much faster overseas than in the United States, however, that this strategy bids fair to lose publishers their most promising markets permanently.
- Changing print textbooks sold abroad just enough to be poor substitutes for domestic books. (Hat tip to Andy Woodworth.) This is feasible but far from costless, and it risks both those potentially lucrative foreign markets and a public relations backlash.
- Restricting print textbook supply in foreign countries, perhaps insisting upon demonstration of student status or enrollment in a specific class. This would have stopped Kirtsaeng’s relatives from purchasing the textbooks he resold. It’s leaky, though; what is to stop students from sharing a copy while buying one apiece for profitable resale in the United States?
- Legislative redress. Given existing agitation from students and parents over textbook prices, this seems unlikely to work, but if Maria Pallante genuinely does spur legislative activity around copyright rewriting, textbook publishers are likely to find help from her.
- Copyright-treaty redress. The international copyright treaty space actually offers textbook decision-makers significant hope, since it’s where copyright maximalists and infringement-enforcement hawks are focusing their effort. I would not be at all surprised to see restriction of textbook arbitrage attempted in a future ACTA.
- Moving away from print (and the ownership of print that allows first sale to come into play) toward electronic textbooks, where lucrative information leasing is vastly more common and DRM limits (though cannot entirely prevent) leakage.
I have already expressed significant concern in these pixels about that final possibility, which the Wiley decision motivates textbook publishers to pursue even more strongly than they already are. I don’t care to repeat myself, not least to avoid another dunking in the hot water I got into then! Instead, I’d like to argue that open-textbook programs offer a feasible, student-friendlier alternative to (or augmentation of) Big E-Textbook Deals, even for universities pursuing those deals.
At the recent Library Technology Conference 2013, reference librarian Kristina De Voe described Temple University Libraries’ pragmatic pilot program introducing open textbooks to faculty. While some pilot-program participants used the same textbook-avoidance bricolage techniques I do—cobbling together open access journal articles, gray literature, news articles, top-drawer blog posts, digital collections, and suchlike to round out a nicely up-to-date syllabus—others dipped their toes into actual open-textbook waters and found them inviting. Crucially, Temple faculty found that their students not only saved money but engaged more with the materials. Temple hasn’t demonstrated clear learning gains from open textbooks yet, but faculty haven’t seen learning losses either, putting paid to the oft-heard concern that electronic textbooks automatically lead to decreased learning.
Even before state legislatures force some of us to, even before most of us decide to help fund open-textbook creation, helping faculty work with open textbooks and other open readings only makes sense. At minimum, open readings mean that no student will suffer academically from the decision not to purchase a (print or electronic) textbook, as is sometimes happening now. For institutions considering (or already part of) Big E-Textbook Deals, programmatic campus use of open textbooks increases negotiating power with publishers and platforms: prices had better stay reasonable, and allied services must be usable and worthwhile, or the institution can and will switch to open alternatives.
As Temple’s example demonstrates, academic libraries can lead open textbook programs, even though we have historically avoided involvement with textbooks and their issues. Materially helping many students should be incentive enough, but if more is needed, working directly with faculty lets librarians inject more library-purchased and library-digitized materials (including primary sources) into classrooms. Temple found the rewards well worth the effort; I strongly believe other libraries will as well.