Evolution of Ebook Bills
Library associations in several states are working on various solutions to the e-book problem for libraries. Each legislative solution is focused on providing a pathway for public libraries to have more favorable terms from publishers for the ebooks the license for their communities. Others are looking to establish something closer to true ownership rights for certain e-materials.
As of May 1, 2022, six states have active bills this session to address these issues. With the lawsuit brought by the American Association of Publishers against the State of Maryland about its ebook legislation, it is important to be aware of current developments in the various legislatures.
Several bills under consideration are modeled on or are direct copies of the Maryland bill. This included the bill in New York which has been vetoed by the Governor in December 2021. Likewise, the current language of ebook bills in Massachusetts, Missouri, and Rhode Island are very dependent on the Maryland bill. Both the Massachusettes and Rhode Island bills are being re-engaged by stakeholders (see below for a longer discussion of the H4120). The Missouri bill was just recently introduced and heard in the state's Emerging Issues Committee. The Illinois and Tennessee bills are notable because they are both locating an ebook solution for libraries in existing state consumer protection statutes.
Active Bills this Session:
CT SB131 - An Act Concerning Electronic Book Licensing
Summary: Among specific provisions, any publisher who offers any contract or product license for the acquisition or use of any electronic book to the public shall, upon the request of any library in this state, offer such contract or product license to the requesting library on reasonable terms that would permit the requesting library to provide its library users with access to such electronic book.
Status: 2/18/22 introduced, in Committee on Planning and Development
IL HB4470 / IL SB3167 - Access Electronic Literature
Summary: Any publisher who offers a contract or license for electronic literary product acquisition to the public shall offer to license the electronic literary product to libraries. A contract or license shall not restrict a library's right or ability to loan or circulate electronic books and digital audiobooks in specified ways.
Status: Re-referred to Rules Committee on 03/04/2022
MA H4120 - An act to modernize library access to electronic books and digital audiobooks
Summary: Changes licensing laws for libraries. Any publisher who offers to license electronic books and digital audiobooks to the public shall offer to license the electronic books and digital audiobooks to libraries in the commonwealth on reasonable terms that would permit the libraries to provide their users with access to the electronic books and digital audiobooks.
Status: 2/3/22 Reporting date extended to Wednesday, June 1, 2022, pending concurrence
We are hosting the MLA Legislative Committee stakeholder recommendations memo on H4120 (opens PDF) with the permission of the Co-Chairs. The memo details the recommendations to transition H4120 from the Maryland language to a bill rooted in the concepts of consumer protection for libraries as purchasers.
"This memo is about the strategic choice between simply adding the Massachusetts voice to the
existing voices surrounding current and proposed eBook laws in several states, with the
likelihood of legal challenges due to the federal preemption problems explained in this memo;
or pursue an entirely separate but complimentary basis, under Massachusetts contract and
consumer protection law as proposed in the amendment below, that establishes equivalent
protections in eBook purchasing practice for libraries."
In late April, the Massachusettes Library Association's legislative task force presented a fresh amendment to the House along with detailed explanatory documentation on the reasons to shift the bill's language into the purview of the state (i.e. contract law). The memo says that the amendment is "designed to empower libraries as consumers to
fulfill their missions of providing access to information for all Massachusetts patrons by ensuring that contractual agreements between libraries and publishers contain fair licensing terms for the acquisition of electronic literary materials at reasonable yet competitive prices, whether managed directly or through consortia and aggregator contracts." With MLA's permission, the EveryLibrary Institute is hosting a copy of the amendment and memo for download (opens PDF).
MO HB2210 / MO SB1095 - Creates provisions relating to the licensing of electronic literary products
Summary: A publisher who offers to license electronic literary products, as defined in the bill, to the public shall also offer to license such products to public libraries. Publishers shall offer to license such products to public libraries.
Status: 1/25/22 hearing
RI H7113 - General Regulatory Provisions--electronic Book Licenses to Libraries and Schools
Summary: This act would require publishers to provide electronic book licenses to libraries and schools, when a publisher offers to license electronic books and digital audiobooks to the public, and to license such books to all public, private, academic, and educational libraries.
Status: 2/1/22 Committee recommended measure be held for further study
TN HB1996 / TN SB1955 - An act to amend Tennessee Code Annotated, Title 47, Chapter 25, relative to electronic literary product licenses
Summary: A publisher who offers to license an electronic literary product to the public must offer to license the electronic literary product to libraries in the state on reasonable terms, which would enable libraries to provide library users with access to the electronic literary product.
Status: House bill 02/02/2022: Placed on s/c cal Banking & Consumer Affairs Subcommittee for 2/9/2022; Senate bill 01/31/2022: Passed on Second Consideration, refer to Senate Commerce and Labor Committee
Vetoed Bills:
NY A05837 / NY S02890 - Relates to requiring publishers to offer licenses for electronic books to libraries under reasonable terms; defines terms; establishes penalties.
It remains to be seen if state legislatures will endorse ebook bills that are modeled significantly on the Maryland bill or will they see the veto in New York as a cautionary and wait for clarity in the courts. It will also be interesting to see if legislatures will look at substantially different approaches like the amendments to H4120 in Massachusetts suggest as a viable pathway to allow libraries to fully participate in the ebook marketplace.
The EveryLibrary Institute is supporting the library community in Maryland as the AAP suit begins a long process moving through the courts. Likewise, we are supporting H4120 and are participating in the Massachusettes Library Association's Legislative Committee discussions on realignments to H4120.
[revised 3/9/22; published 2/8/22]