It was just over a year ago that a federal judge in Maryland struck down the state’s groundbreaking library e-book law. But with the 2023 legislative year underway, library advocates are back with new model legislation they say can help ensure “fair and equitable licensing terms in e-book contracts for libraries” while avoiding the thorny copyright issue that doomed Maryland’s law.
The revised language, developed with support from nascent library advocacy group Library Futures, takes a “regulate” rather than “mandate” approach. In other words, unlike Maryland’s law, which would have required publishers to offer license agreements to libraries “on reasonable terms” for digital books that were available to consumers, the new legislative language instead focuses regulating the terms of agreements. Key to the revised bill's effectiveness is language that would render unenforceable any license term that “precludes, limits, or restricts" libraries from performing their traditional, core mission.
So far, the new model language has been introduced in bills in two states: Massachusetts and Hawaii, though library advocates say they are “working closely" with advocates in several more states and anticipate more bills in the coming weeks and months of 2023.
“By focusing on fair licensing terms and state law, [the proposed model language] can nullify the threat of copyright and federal preemption lawsuits against the library community and the public,” noted Library Futures policy fellow Juliya Ziskina, in recent blog post on the Library Futures site. The goal, Ziskina added, is to provide "a pathway for libraries to obtain licensing terms more suited to library needs.”
A quick scan of the headlines suggests that library e-book laws are once again appearing on legislators' radar in several states. In all, five states have so far introduced library e-book bills in the opening weeks of 2023, with Rhode Island, Connecticut, and Virginia introducing bills in addition to Massachusetts and Hawaii, although it is unclear if or how quickly the bills will advance—the Connecticut bill is very brief; a senate committee in Virginia swiftly voted to table their bill for now; and the bill in Hawaii has advanced but was recently amended to include an effective date of June 30, 3000.
Commenting on the vote to table the Virginia bill, Shelley Husband of the Association of American Publishers called the vote “a welcome recognition of how intellectual property rights fuel authorship and digital commerce, as well as a resounding rejection of state-level legislation that seeks to unconstitutionally infringe on well-established federal law protecting the rights of creators.”
The Rhode Island bill, meanwhile, is a hybrid: it features language from the Maryland bill as well as a clause that would render unenforceable license terms that “limit the rights of a library or school under the U.S. Copyright Act.” Importantly, that provision would be severable—meaning that should the Rhode Island bill become law and parts of it later declared invalid, that copyright protection provision could stand.
Passed unanimously in March of 2021, Maryland’s first-of-its-kind library e-book law required publishers offering to license "electronic literary products" to consumers in the state to also offer to license that content to public libraries "on reasonable terms." The law emerged after a decade of tension in the digital library market, with libraries long complaining of unsustainable, non-negotiated high prices and restrictions. More specifically, the Maryland law was a direct response to Macmillan's controversial (and since abandoned) 2019 embargo on frontlist e-book titles in libraries.
Just before the law was set to take effect, however, the Association of American Publishers—without a publisher plaintiff—filed suit to block the measure, arguing that the law ran afoul of the the federal Copyright Act. And on February 16, 2022, judge Deborah Boardman agreed, holding that “the State’s characterization of the Act as a regulation of unfair trade practices notwithstanding,” the Maryland law “frustrates the objectives and purposes” of the Copyright Act. In a final declaratory judgment, Boardman declared the law unconstitutional and unenforceable.
The AAP has made it clear it will continue to oppose the new legislative initiatives. "It doesn’t matter how the state bills are labeled, it matters what they do, and just like the legislation that was struck down in Maryland, these bills are clearly unconstitutional," says AAP spokesperson John McKay. "In addition to being preempted by the federal Copyright Act these bills would devalue intellectual property, directly harming authors and other creators by limiting their ability to seek compensation. They would also create a patchwork of differing rules across the country, creating mass confusion, disrupting access, and limiting the downstream economic contributions of the publishing ecosystem."
In her post, Ziskina acknowledged that while library e-book legislation at the state level can be an important tool to help "mitigate the inequities in the e-book marketplace," they are not a panacea, as they do not directly address the kind of core "digital ownership issues" facing libraries in a digital market that, so far, has been centered on licensed access. To that end, Library Futures this month also released a policy paper on digital ownership for libraries.
"Licensing has resulted in a deeply broken system around e-book lending, impeding libraries from serving the needs of their communities while also creating critical access issues," Ziskina said in a post announcing the new policy paper. "In response, Library Futures recommends policymakers adopt an approach of digital ownership that extends the current paradigm for print works and allows libraries to both maintain the benefits of print collections and innovate even further toward providing new methods of access, preservation, and education by creating new lending models, equitizing access for underserved communities, and contributing to a more democratic balance."