From Publisher’s Weekly:
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.
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.
Link to the rest at Publisher’s Weekly