ELI Gives Testimony on H.4120 eBook Bill in Massachusetts
The EveryLibrary Institute and EveryLibrary are following H.4120, a bill to create more favorable conditions for libraries in Massachusetts about ebook and audiobook licenses and, perhaps someday, even ownership.
The Massachusetts Joint Committee on Tourism, Arts and Cultural Development (TACD) held a hearing this week to review the concepts behind the bill and the legislative language. We have a strong interest in seeing this bill advance, but with some modifications to both the language and the way it is addressing the problems of both licensing terms and even ownership. We appreciate and endorse H.4120 in concept. The goal of any ebook and audiobook legislation should be to ensure that digital materials can be sold to libraries in the same way print materials are, and that in the absence of any overriding contract or terms of service those digital materials can be circulated the same way that print is. However, the bill as it is drafted is modeled on other legislation in Maryland, New York, and Rhode Island that seems to run afoul of Congressional preemption over copyright issues.
That issue of Congressional preemption means that the courts may not like it how it is structured - - or the similar bills in other states. The American Publishers Association already said during the Rhode Island hearings that they will oppose the bill in court. But there is another path that has been identified by our colleagues at the Library Futures Foundation that would provide a similar remedy to ebook and audiobook access and pricing but root the solutions in consumer protections and how licensees and contracts are constructed under state law. It's is not a more or less sophisticated or nuanced approach than the original approach. But it is potentially more appropriate. If H.4120 and other ebook bills around the country are hoping to see libraries be able to get fair terms, then we need to address the need to create consumer protections for libraries - and a fairer marketplace for publishers - in the process. The EveryLibrary Institute submitted written testimony to the TACD committee about our perspectives and hopes. We're sharing it below to help move the conversation forward in our sector about this important legislative issue.
17 November 2021
Joint Committee on Tourism, Arts and Cultural Development
192nd General Court of the Commonwealth of Massachusetts
Chair Kennedy, Chair Fiola, Vice-Chair Fernandes, Vice-Chair Cronin, and Members of the Committee:
The EveryLibrary Institute is a national non-profit public policy and tax policy research organization for libraries. We are following H.4120, An Act Modernizing Library Access to Electronic Books and Digital Audiobooks, closely and appreciate the opportunity to provide written testimony to the Joint Committee on Tourism, Arts and Cultural Development for its November 19, 2021 hearing on the bill. The EveryLibrary Institute’s network includes public libraries, academic libraries, and school libraries, including those in Massachusetts, who are focused on the issue addressed in the bill, and more broadly on issues affecting the historic and ongoing ability of libraries to purchase, lend, archive, and otherwise make available materials for education and enjoyment, or through preservation and adaptation.
We believe that the goals of H.4120 are positive for libraries and the communities they serve in Massachusetts. However, we believe that the language under consideration today should be modified in order to avoid problems of Congressional preemption that have been visited on other states’ legislation
while providing libraries a pathway to exercise their rights in the Commonwealth through contract law and consumer protections. We understand that language proposed by our colleagues at the Library Futures Foundation (LFF) will avoid potential problems with federal copyright preemption while ensuring that the aims of the bill will allow Massachusetts libraries, publishers, and copyright holders to participate in the marketplace more fully. We encourage the Joint Committee to consider modifications to H.4120 and continue to advance this important legislation.
For Your Additional Consideration
Libraries are provided certain rights and responsibilities by both state and federal statute and by customary practices in order to function as a library. Among these are the ability to lend or loan, to create preservation copies of materials, and to remaster works for accessibility. The most visible of these - and a core and necessary aspect of a library’s ability to function in the public interest - is its ability to lend or loan materials either directly to patrons or through interlibrary loan. A library can lend or loan only through the exercise of its rights as a buyer or consumer first. Society may not normally recognize that for a library to lend or loan an item a library must first be able to lawfully purchase or acquire an item. But without the ability to make a purchase a library cannot faithfully lend or loan.
With all print books and other physical materials (e.g., compact discs, video tapes, board games, tools or equipment) a library makes a purchase and then exercises its customary right to lend or loan because of first sale doctrine. First sale doctrine likewise protects any consumer or buyer from overreach by the creator or the copyright holder while enabling a functional a marketplace. While any contract may bind parties to a term of sale or use, absent a contract the principles of first sale doctrine devolve rights to the buyer and not the copyright holder. Without appropriate legislation focused on contracts and consumer protections, there is no reasonable pathway for libraries in Massachusetts to be libraries regarding electronic materials such as ebooks and audiobooks.
In sending you this testimony, we anticipate that some publishers and copyright holders will suggest that any action by the Massachusetts General Court to ensure that libraries can buy ebooks, audio books, and other electronic materials in the Commonwealth would create a compulsory license and run thereby afoul of Congressional preemption. It is important to note that numerous publishers currently, regularly, and normally offer ebooks, audiobooks, and other electronic materials for sale to individual buyers across the Commonwealth which are delivered as simple electronic files or as “DRM free” content. Likewise, these sales of ebooks and audiobooks does not bind the buyer to any post-sale terms or conditions. This activity in the marketplaces would appear to demonstrate a willingness on the part of publishers to acknowledge some degree of parity between physical and electronic materials in their offer of sale - at least to certain class of buyers. However, many publishers operating within the Commonwealth are currently refraining from offering ebooks, audio books, and other electronic materials for sale to libraries in the same manner as they do so to individual buyers. It is unclear from where we sit why libraries are considered a particular or peculiar class of buyers.
Thank you for your consideration.
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