Textbook Disclosure Rules in U.S. House Bill

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The Chronicle of Higher Education had an article today [subscription required] about legislation pending on the floor of the U.S. House of Representatives that in part includes rules for disclosure of textbook selection and pricing. The lever is the reauthorization of the Higher Education Act, a major law that governs federal student aid. (In other words, it is unlikely that, if passed, an institution would not follow these proposed rules because it would mean not getting federal financial aid money for their students. Nice lever, eh?) The House of Representatives is expected to vote on the "College Opportunity and Affordability Act," the reauthorization of the Higher Education Act, on Thursday, February 7th.

13-Feb-2008, An Update

The U.S. House voted to approve the bill last week. Note, though, that the U.S. Senate's own version of the reauthorization of the Higher Education Act of 1965, approved on July 24th last year, does not include the textbook provisions.

Also, the Chronicle of Higher Education Wired Campus blog has a report on comments made by U.S. Education Secretary Margaret Spellings at the National Legislative Summit held by the Association of Community College Trustees. The text of her speech did not talk about textbook costs, and Ms Spellings apparently made no comment when asked by an audience member whether she supported the textbook provisions in the U.S. House version of the reauthorization act.

What's Not In the Legislation

Before getting to the text of the bill itself, it is important to note what is not -- and likely cannot be -- in the legislation: the used book market. Why is the used book market an issue?

Needless to say, it takes some fixed amount of capital to produce the content that goes into the textbook...the cost of the first copy, if you will. That costs must be divided across the number of copies that are expected to be sold. The used book market changes the publisher's equations. Since the publisher does not get any revenue from the sale of the used book (it all goes to the used book intermediary), the publisher must expect to sell fewer copies of the new book, so each new book sale must account for a larger share of the divided fixed costs. The cost of the new book goes up.

It will be interesting to see what the effect of this bill is on the actual economic system of the textbook market. As you'll read below, it clearly aims to bring sunshine to part of that system: on the part of the publishers and the academic institutions. In my opinion, it is missing a third section, though, which would shed light on the used book intermediary part of the economic system.

The Bill Itself


Portions of the version of the bill as enrolled in the House out of the Education Subommittee are included below. (If you want to see the full version for yourself, follow the previous link, then select the link for "SEC. 110. TEXTBOOK INFORMATION." -- because of Thomas' document system, I can't link directly to the text of the section.)

Purpose and Intent

First is a statement of purpose, which by itself is an interesting read.

Purpose and Intent- The purpose of this section is to ensure that every student in higher education is offered better and more timely access to affordable course materials by educating and informing faculty, students, administrators, institutions of higher education, bookstores, distributors, and publishers on all aspects of the selection, purchase, sale, and use of course materials. It is the intent of this section--

  1. to have all involved parties work together to identify ways to decrease the cost of college textbooks and supplemental materials for students while protecting the academic freedom of faculty members to select high quality course materials for students; and
  2. to encourage--
    1. college textbook publishers and distributors to work with faculty to promote understanding of the cost to students of purchasing faculty selected textbooks, including the disclosure of prices and bundling practices;
    2. college bookstores to work with faculty to review timelines and processes for ordering and stocking course materials, and to disclose costs to faculty and students in a timely manner;
    3. institutions of higher education to implement numerous options to address college textbook affordability;
    4. institutions of higher education to work with student organizations to help students understand the factors driving textbook costs and available methods and resources to mitigate the effects of those costs; and
    5. innovation in the development and use of course materials (including course materials utilizing the principles of universal design) and technologies that can help students receive the full value of their educational investment.

The project that I'm involved with at OhioLINK is working towards the latter point -- testing a hypothesis that "enhanced" textbooks (those re-engineered with a instructional design philosophy that embeds pre- and post-texts, video, audio, simulations, and other forms of media) improve learning outcomes and can be purchased by the student at a lower cost. In part, though, our efforts at the statewide level are hampered by point "B" above -- the lack of a centralized focus of textbook lists for all classes.

There is some movement in Ohio on points "C" and "D" above as well with the concept of a "textbook information portal." (The DLTJ post on websites for digital textbooks is/was one preliminary piece of the portal.) Unfunded at the moment, but a possible work item for us.

Publisher Requirements

This is followed by a section of definitions (omitted here) then a section of publisher requirements:

  1. COLLEGE TEXTBOOK PRICING INFORMATION- When a publisher provides a faculty member or other person or adopting entity in charge of selecting course materials at an institution of higher education with information regarding a college textbook or supplemental material, the publisher shall include, with any such information and in writing, the following:
    1. The price at which the publisher would make the college textbook or supplemental material available to the bookstore on the campus of, or otherwise associated with, such institution of higher education.
    2. The copyright dates of all previous editions of such college textbook, if any.
    3. The substantial content revisions made between the current edition of the college textbook or supplemental material and the previous edition, if any.
    4. Whether the college textbook or supplemental material is available in any other format, including paperback and unbound, and the price at which the publisher would make the college textbook or supplemental material in the other format available to the bookstore on the campus of, or otherwise associated with, such institution of higher education.
  2. UNBUNDLING OF COLLEGE TEXTBOOKS FROM SUPPLEMENTAL MATERIALS- A publisher that sells a college textbook and any supplemental material accompanying such college textbook as a single bundle shall also make available the college textbook and each supplemental material as separate and unbundled items, each separately priced.
  3. CUSTOM TEXTBOOKS- To the maximum extent practicable, publishers shall provide the information required under this subsection with respect to the development and provision of custom textbooks.

Several interesting parts here. First is (1.A.), which says that the wholesale price, not the suggested retail price be disclosed by the publisher. In the Chronicle article, J. Bruce Hildebrand (executive director for higher education at the Association of American Publishers) says that to keep publishers' costs down the bill should require them to report suggested-retail rather than wholesale prices, as companies are now set up to do. I'm not really buying that argument if the fundamental issue is one of complexity -- it shouldn't be any more complicated to add wholesale prices to an existing report that includes suggested retail price.

The next key piece is (1.C) -- the report of "substantial content revisions made between the current edition of the college textbook or supplemental material and the previous edition." I'm hard pressed to come up with a scenario where this improves the overall textbook economic structure. On the one side is the argument "How often has the field of introductory calculus substantially changed in the past few decades?" The answer is probably "not much" and this report will tell whether there are substantial changes or just updating of examples and photographs to contemporary life. What is likely to happen, though, is that such a report will further encourage the used book market to flourish because the instructors will see that nothing has really changed in previous edition of the textbook and, to help the students save money, will tell students to buy the previous edition off the used book market. This will further drive down sales of new books and raise the price for the unlucky ones that have to buy them.

This gets even more intriguing when combined with point 2 -- the unbundling of supplemental materials from the textbook. The supplemental materials are "printed materials, computer disks, website access, and electronically distributed materials [that are] not bound by third-party contractual agreements to be sold in an integrated textbook." In many cases, these are "consumables" -- a workbook where the student writes notes or a website access key that is only good for a fixed period of time after activation. There is nothing in this legislation that requires publishers to sell supplemental materials for previous editions of the textbook. If a textbook includes supplemental materials, and the textbook is revised in a manner that is incompatible with previous editions of the supplemental materials, it would seem that the publisher can still force students to buy the new edition.

As a librarian, the part of this that I would find most useful is (1.D) -- the list of supplementary material. If that supplementary material consists entirely or in part of journal articles and/or other material libraries have licensed for our campus community, then students should not be asked to pay for them again. While not explicitly stated, I'm hoping the regulations that stem from this law will mandate reporting of citation information in such as way that we can determine whether we already license content in these supplemental materials. This, too, combined with point 2 (the unbundling of the supplemental materials) means that the library might be in the position to save money for the students by not requiring that they buy supplemental materials they can already get through library channels.

Institution's Requirements for Students

Then our legislators get all techie:

Provision of ISBN College Textbook Information in Course Schedules-

  1. INTERNET COURSE SCHEDULES- Each institution of higher education, to the maximum extent practicable, shall--
    1. disclose the International Standard Book Number and retail price information of required and recommended textbooks, related materials, and supplies for each course listed in the institution's course schedule used for pre-registration and registration purposes;
    2. if the International Standard Book Number is not available for the items listed in subparagraph (A), use the author, title, publisher, and copyright date; and
    3. if the institution determines that the disclosure of the information described in the preceding subparagraphs for a course is not practicable for a textbook, related material, or supply, then it should so indicate by placing the designation `To Be Determined' in lieu of the information required under such subparagraphs.
  2. WRITTEN COURSE SCHEDULES- In the case of an institution of higher education that does not publish the institution's course schedule for the subsequent academic period on the Internet, the institution of higher education shall include the information required under paragraph (1) in any printed version of the institution's course schedule as it is available at the time of the course schedule's printing.

Legislation that mentions the internet and the ISBN? Cool! Now we just need them to mandate a REST-oriented programming interface so we can all mash up the data against bookstore programming interfaces.

But there are likely to be issues. As I understand the course catalog process, a department will commit to teaching a class without knowing which instructor will actually teach it; that happens much closer to the start of the term. (How many classes have you signed up for where the instructor is listed as "To Be Determined"?) Since faculty are free to choose their own textbook, the ISBN of the chosen textbook won't be in the course catalog when the student is registering. The law allows an institution to put a "to be determined" notation in the required text area, but the regulations that enact this law should force colleges to put that information into "internet course schedules" as soon as that information is known. Besides, I don't think the information is as useful when registering for a class (is the required textbook a deciding factor in determining which section of a class to take?) as it is right at the start of the term when the required and recommended texts are being purchased.

Institution's requirements for Bookstores

The final section spells out requirements for higher education institutions to make data available to bookstores.

Availability of Information for College Bookstores- An institution of higher education shall make available, as soon as is practicable, upon the request of any college bookstore, the most accurate information available regarding--

  1. the institution's course schedule for the subsequent academic period; and
  2. for each course or class offered by the institution for the subsequent academic period--
    1. the information required by subsection (d)(1) for each college textbook or supplemental material required or recommended for such course or class;
    2. the number of students enrolled in such course or class; and
    3. the maximum student enrollment for such course or class.

This is an interesting section. I have the impression that it is common practice for institutions to not keep central registries of textbooks used on campus. That information is gathered by bookstores (whether part of the institution, outsourced, or an independent bookstore) to serve their customers. This section would seem to imply that institutions now have a responsibility to gather textbook information on behalf of the bookstores. Time will tell what the impact of this section will be, but it seems to put the educational institution more in the driver's seat.

Conclusions

As with all legislation, it is imperfect when viewed from a variety of angles. From a librarian perspective, it looks nice because it opens a few doors for us as members of the institution to help out with reducing the cost of course materials -- particularly in the area of supplemental materials where we have already acquired site licenses. From a consumer perspective, sunlight on dark corners is nice, but I'm not convinced the overall effect will reduce textbook costs. If anything, the legislation might reinforce the negative feedback loop between the publisher, consumer, and used textbook intermediaries. I find it hard to walk in the path of the publishers, booksellers, and other members of the textbook economic system, so I hope those actors will speak up with a reasoned voice on this legislation, as I hope you have found this review to be well reasoned. Feel free to add your voice in the comments section.

The text was modified to remove a link to http://www.opencongress.org/roll_call/show/2334 on January 20th, 2011.

The text was modified to update a link from http://www.ed.gov/news/pressreleases/2008/02/02122008.html to http://web.archive.org/web/20111019223002/http://www2.ed.gov/news/pressreleases/2008/02/02122008.html on August 22nd, 2013.