HOUSE DOCKET, NO. 3425        FILED ON: 1/20/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3239

The Commonwealth of Massachusetts

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PRESENTED BY:

Ruth B. Balser

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act empowering library access to electronic books and digital audiobooks.

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PETITION OF:

HOUSE DOCKET, NO. 3425        FILED ON: 1/20/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3239

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act empowering library access to electronic books and digital audiobooks.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

Chapter 78 of the General Laws is hereby amended by adding the following section: 

SECTION 35. An Act empowering library access to electronic books and digital audiobooks.

A. Definitions

For purposes of this act, the following terms mean:

(1)  “Digital audiobook” means a published work that is in the form of a voice recording (narrated) and is released as a digital audio file;                                                                                    

(2)  “Electronic book” means a published work that is in written form and is released as a digital text file;                                                                                    

(3)  “Electronic literary materials” means digital audiobooks and/or electronic books;                                                                                    

(4)  “Libraries” include:

(A) public libraries;

(B) public elementary school or secondary school libraries; 

(C) tribal libraries;

(D) academic libraries;

(E) research libraries;

(F) special libraries 

(G) talking book libraries; and

(H) archives;

(5)  "Publisher" means one whose business is the manufacture, promulgation, license, and/or sale of books, audiobooks, journals, magazines, newspapers, or other literary productions including those in the form of electronic literary materials. For the purposes of this bill the term ‘publisher’ shall also include aggregators who enter into contracts with libraries for the purposes of providing materials for purchase or license from the publishers;

(6)  “Aggregator” means one whose business is the licensing of access to electronic literary material collections that include electronic literary material from multiple publishers;                                                                                    

(7)  “Literary monograph” means a literary work that is published in one volume or a finite number of volumes;                                                                                    

(8)  “Technological protection measures” means any technology that ensures the secure loaning and/or circulation by a library of electronic literary materials;

(9)  “Borrower” means a person or organization, including another library, to whom the library loans electronic literary materials of any sort;                                                                                    

(10)  “Virtually” means transmitted to receiving parties via the Internet in such a way that the transmission appears in front of the receiving parties on a computer, tablet, smart phone, or electronic device;                                                                                    

(11)  “Loan” means create and transmit to a borrower a copy of electronic literary material and delete it at the end of the loan period;

(12)  “Loan period” means the time between the transmission of electronic literary material to a borrower and the copies’ deletion, as determined by any individual library.

B. Contracts Between Libraries and Publishers

(a)  Any contract offered by a publisher to a library for the purposes of licensing electronic literary materials to the public in this state is governed by Massachusetts law.

(b) A contract between a library and a publisher shall contain no provision that:

(1) Precludes, limits, or restricts the library from performing customary operational functions, including any provision that:

  (A)  Precludes, limits, or restricts the library from licensing electronic literary materials from publishers;                                                                      

  (B) Precludes, limits, or restricts the library’s ability to employ technological protection measures as is necessary to loan the electronic literary materials;

  (C) Precludes, limits, or restricts the library's right to make non-public preservation copies of the electronic literary materials;

  (D)  Precludes, limits, or restricts the library’s right to loan electronic literary materials via interlibrary loan systems; or

(2) Precludes, limits, or restricts the library from performing customary lending functions, including any provision that:

(A) Precludes, limits, or restricts the library from loaning electronic literary materials to borrowers;

(B) Restricts the library’s right to determine loan periods for licensed electronic literary materials;

(C) Requires the library to acquire a license for any electronic literary material at a price greater than that charged to the public for the same item;

(D) Restricts the number of licenses for electronic literary materials that the library may acquire after the same item is made available to the public;

(E) Requires the library to pay a cost-per-circulation fee to loan electronic literary materials, unless substantially lower in aggregate than the cost of purchasing the item outright;

(F) Restricts the total number of times a library may loan any licensed electronic literary materials over the course of any license agreement, or restricts the duration of any license agreement; unless the publisher also offers a license agreement to libraries for perpetual public use without such restrictions; at a price which is considered reasonable and equitable as agreed to by both parties

(G) Restricts or limits the library’s ability to virtually recite text and display artwork of any materials to library patrons such that the materials would not have the same educational utility as when recited or displayed at a library facility;

(3)  Restricts the library from disclosing any terms of its license agreements to other libraries.

(4)  Requires, coerces, or enables the library to violate the law protecting the confidentiality of a patron’s library records found in Chapter 78, Section 7.

C. Remedies

(A) Unfair and Deceptive Practices 

(1) Offers to license electronic literary materials that include a prohibited provision listed in Section 3 constitute unfair and deceptive practices within the meaning of Section 2 of Chapter 93A, Regulation of Business Practices for Consumer Protection, and any remedy provided pursuant to Chapter 93A shall be available for the enforcement of this act. 

(2) Actions for relief pursuant to this act may be brought by libraries, library officers, or borrowers. 

(3) Parties shall be enjoined by the courts from enforcing license agreements that include a prohibited provision listed in Section 3.

(B) Unconscionability 

(1) Contracts to license electronic literary materials that include prohibited provisions listed in Section 3 of this chapter are unconscionable within the meaning of Chapter 106, Section 2-302 in violation of Massachusetts public policy and are deemed unenforceable and void. Any waiver of the provisions of this title is contrary to public policy and shall be deemed unenforceable and void.

(C) Any publisher that violates this title shall be subject to an injunction and liable for a civil penalty of not more than two thousand five hundred dollars ($2,500) for each violation or seven thousand five hundred dollars ($7,500) for each intentional violation, which shall be imposed by the court.

D. Severability 

The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

E. Existing Contracts

Nothing in this subsection affects existing contracts that are currently in force providing libraries with electronic literary products from vendors and aggregators.

F. Effective Date 

This act shall take effect upon its enactment into law unless otherwise specified. The provisions of this act apply to transactions entered into and events occurring after such date.