A Maryland state bill that would ensure public libraries the right to license and lend e-books and other digital works that are available in the consumer market took another step forward this week, sailing through a routine committee hearing in the Maryland state senate.
After passing the Maryland General Assembly unanimously on March 10, the bill is now in reconciliation and faces a few more steps before it can head to the governors’ desk. But the first of those steps went quickly during a scheduled March 24 committee hearing, in which the bill was reported favorably out of committee in just over a minute, without objection.
Library supporters remain hopeful it will cross the finish line before the April 12 legislative session ends in Maryland, despite recent comments from the Association of American Publishers, which this week stated its opposition to the measure.
"Federal copyright law prohibits this type of regulation of copyrights by state governments. Moreover, SB432 raises significant Commerce Clause and Due Process Clause concerns and would likely be found to violate the U.S. Constitution," reads testimony submitted to the Maryland state legislature by AAP general counsel Terrence Hart. "We therefore urge lawmakers to revisit the intent and expression of this draft bill and to engage broader stakeholder input into its intended and unintended impacts."
First introduced in January, the bill (HB518 in the House of Delegates and SB432 in the Senate) would require “a publisher who offers to license an electronic literary product to the public to also offer to license the product to public libraries in the State on reasonable terms that would enable public libraries to provide library users with access to the electronic literary product.”
Despite its initial passage, the bill still faces a few more steps in the legislative process, but if signed by Governor Larry Hogan the bill could take effect as early as July 1 of this year.
Two more states (New York and Rhode Island) introduced similar legislation last year but it is unclear when or if those measures will be reintroduced.
As of 2014, most publishers make their full catalogs available to libraries in some form—though whether or not that access is “reasonable” is an ongoing debate. Amazon, however, is a different story, and the Maryland law comes as the pressure ramps up on Amazon to make its exclusive digital content available to libraries.
In its testimony this week, AAP downplayed the tension in the library e-book market between libraries and publishers, while urging Maryland lawmakers to pursue a different route in addressing concerns with Amazon.
"To the extent that the bill aims to address the licensing decisions of a particular dominant online company doing business in the state, we ask the Committee to handle those concerns as a matter of antitrust law," the testimony states, while adding that "AAP is unaware of any demonstrated, pervasive market failure or other basis involving the hundreds of publishers we represent that would justify the systemic market regulation of copyrights that SB432 would establish."
Jonathan Band, a Washington DC-based lawyer who works with the library community, offered a rebuttal to the AAP's concerns.
"The bills do not force publishers to transfer any of their exclusive rights and the publishers’ rights remain undiminished," Band wrote in a response shared with PW, explaining that because the bills regulate license terms, the AAP's copyright concerns are misplaced. "The bills prevent unreasonable discrimination against public libraries," Band argues, explaining that the legislation simply provides that if a publisher licenses an e-book to the public in Maryland, the publisher must also make licenses available to public libraries as well.
Band also told PW that publishers can't have it both ways: using the concept of e-books as licensed products to deny libraries the right to buy and lend digital versions of literary works, a right they enjoy under copyright law, while claiming that copyright law forbids the state from imposing what he called a “modest” condition requiring the fair availability of digital licenses.
"The intent of this legislation is not to deprive authors of the compensation they deserve, nor to facilitate copyright infringement. Rather, the legislation is intended to enable libraries to continue in the digital age to fulfill their mission of providing the public with access to information," Band writes. "This legislation will help restore the equilibrium that digital technology has disrupted."
