Blog post by Stephen Wyber
2Ensure that contract terms cannot undermine the public interest mission of libraries and other institutions
Clarify that libraries, as well as research and education institutions, can benefit from similar protections as individuals against unfair contract terms, in particular in the digital environment
Unlike individual consumers, libraries and their parent institutions don’t enjoy any meaningful protection against unfair contractual terms. A key concern is that contractual terms can take away possibilities to use materials granted under the law.
Freedom of contract assumes both parties are equally strong. This is rarely the case when libraries have an obligation to provide access to content, and they rarely have the same access to lawyers and professional negotiators that publishers do. This can include unreasonable terms, such as obligations to share personal data or accept foreign copyright law. The end result is that individuals enjoy fewer possibilities of access to research, education and culture.
The Norwegian Consumer Council has recently gone viral with a video about a day in the life of an ens**ttifactor. It presents a man whose job is simply to make things worse.
This embraces the concept of ‘ens**ttification’, coined by writer and activist Cory Doctorow, describing how a major (digital) player takes over a market, creating dependency among users, be they businesses or consumers. Once these users have nowhere else to go, the platform starts cutting back on quality in order to maximise profit, leaving users with a progressively worse service.
The video comes with a report, as well as an open letter to the European authorities underlining the need for stronger action to protect the interests and experience of consumers in a digital world. In other words, legal, enforceable guarantees against ens**ttification. The focus is very much on the upcoming EU Digital Fairness Act, due to be published later this year as the landmark piece of consumer legislation under this mandate, following the adoption of the 2030 Consumers Agenda last month.
The video, as well as many of the organisations signing the letter, are very much focused on individual consumers and digital platforms. However, alongside a focus on consumers, concern about the situation facing libraries was also there at the inception.
A Familiar Situation
The idea of ens**ttification first appeared in a 2022 essay, but was developed further in Doctorow’s 2023 book, Chokepoint Capitalism, alongside Rebecca Giblin. Rebecca brought to the table extensive research knowledge around the experience of libraries in accessing and lending eBooks, as well as that of authors in reclaiming and exercising their rights.
Giblin’s work describes a sector where the shift from physical to digital works has been reflected in a growing share of library investments in collection-building going into electronic material. This reflects both the mandate given to libraries by laws, as well as the expectations of readers.
However, this investment has not been on the same terms as for physical collections. First of all, libraries cannot always build collections at all: ‘exploding’ licences mean that after a set time or number of loans, eBooks disappear without trace.
Giblin’s work also underlines that libraries enjoy little guarantee of being able to licence books in the first place, and face an apparent randomness around pricing. Meanwhile, faced with legislative and community pressure, librarians often feel they have little choice other than to pay up.
The same challenges have been highlighted by the eBookSOS campaign, both in the UK and Ireland, which document inexplicable price-differentials between digital and physical books, as well as major price rises. Both they and others have highlighted how little predictability libraries enjoy around whether their patrons will still be able to access books from one day to the next.
While these examples focus on e-Books, much the same applies to other forms of digital content as well. The impact on library users is that a service on which they could previously rely is no longer as good as it was – books disappear, terms of use are tightened, data collection intensifies. Library users already facing a cost of living crisis have few other affordable options.
A Negative Trend
The challenges set out above are long-standing, with libraries calling for over 10 years for reforms to address the questions faced around acquisition, price and terms.
However, as libraries have advocated, the terms have not necessarily improved. One notable example is the increasingly restrictive rules that rightholders have sought to apply around the use of works for text and data mining. It is increasingly common for libraries to be offered licences that seek to prevent this, even where it is allowed by law.
In parallel, we are also aware of stories of libraries being asked to take on unlimited liability for the actions of their users. This is simply not possible for libraries, whose entire approach is based on enabling users to enjoy the freedom to pursue their research and interests.
A similar trend is at work in the relationship between researchers seeking to get their work published and publishers. Recent examples of ens**ttification here include the invention of Article Development Fees as a way of extracting money for articles that are then placed on institutional repositories. This comes on top of efforts to apply more restrictive licences to (nominally) open access publications, a priori seemingly driven by publishers wanting to maximise revenues from selling access to AI companies.
Finally, while unsuccessful, we have also seen efforts to roll back models that allow libraries to select eBooks freely rather than simply having to subscribe to a whole catalogue. There is no guarantee that further efforts in this direction are not just around the corner.
Closing the Protection Gap
Any progress to improve the position of individual consumers of digital services is welcome, and it is certainly to be hoped that the efforts of the Norwegian Consumer Council and their allies are successful. However, consumers – especially those most affected by the cost of living crisis – will not truly have their rights and interests protected in a digital world if the libraries that they rely on are not also able to benefit from protection.
Right now, this is not the case. A key reason for libraries’ current disadvantage is the lack of coverage under EU consumer law. As KR21’s recent Insights piece into unfair contracts underlines, libraries are frequently asked – or expected – to accept situations that could give rise to consumer law interventions if they were offered to individuals. They are also excluded from provisions that prevent unfairness in B2B relationships, such as those on data access in the Data Act.
There is a protection gap in EU law. This is compounded by the emerging practices set out above. Extending protection against unfair terms to libraries is not a novel idea: Singaporean law already does it, and EU law already applies similar protections to companies through the B2B provisions of the Data Act.
Libraries face the same problems as consumers. The Digital Fairness Act should offer the same solution: enforceable protection against unfair contract terms, for libraries and the people who depend on them.
6 March 2026
