The invention of the printing press gave birth to Western publishing as a business and enabled unprecedented literacy. Copyright law inevitably followed. For centuries, communities sought a healthy balance between publishers’ right to be compensated for creative work and community members’ rights to access. We have arguably achieved that balance in the U.S., which enjoys the most lucrative publishing industry in the world and one of the most literate, innovative societies in human history. Public libraries are integral to this success, enabling access to ideas regardless of ability to pay. This access has been protected for the last 167 years by the First Sale doctrine, which effectively allows libraries to purchase and lend any books made available for individual sale. However, the First Sale doctrine applies to physical materials, not digital ones, which means that public access to ebooks and e-audiobooks is not currently protected like access to print is.
Most publishers, including the Big 5, do make ebooks and e-audiobooks available for libraries to lend under varying license models. Two events, however, created a need for action. First, in 2018 and 2019, four of the Big 5 made disadvantageous changes requiring libraries to pay much more over time; one publisher “windowed” content, allowing each library system only one copy of an ebook for the first 8 weeks after release. Libraries responded with petitions and a boycott. Another important publisher refuses to license its content to libraries at all. Second, the 2020 COVID-19 pandemic shutdowns made physical materials inaccessible and created an unprecedented demand for digital lending. While some publishers eased license terms during the pandemic, such mitigation is temporary. The Maryland Library Intergovernmental Relations Committee worked with Compass Government Relations Partners and State Senator Nancy King and Delegate Kathleen Dumais to introduce a permanent legislative remedy (HB 518/SB 432). The aim is not to undermine copyright or finagle new access at publisher expense. The goal is to ensure that future readers continue to have access as digital formats increase in popularity. Libraries want to sustain today’s rich reading ecosystem well into the future, regardless of the format that readers choose.
HB 518/SB 432
The Maryland legislation (enacted into law on June 1, 2021) is not new. Similar bills were introduced in Rhode Island and New York in 2020, but the pandemic closed those legislatures before they were able to act. The law is deliberately modest: If a publisher licenses ebooks to Maryland residents, then that content must also be available to libraries under reasonable terms. To protect publishers, the law contains provisions stipulating that libraries will circulate content with certain restrictions. As long as those restrictions are reasonable, libraries are not challenging the licenses or asking the legislature to interfere in the market. That said, the law is for the benefit of readers, especially the economically disadvantaged. Advocates stress that a credit card should not be necessary to be an informed reader in a democratic society.
Written and oral testimonies for the bills were provided by representatives of five Maryland county library systems and Senator King and Delegate Dumais. No oral testimony against the bills was given, but the Association of American Publishers (AAP) filed written testimony. The AAP claimed that the legislation would violate copyright by preventing “the exclusive right to distribute a work,” forcing an “involuntary transfer of ownership.” The organization further claimed that the legislation would “erect unjustified barriers against interstate trade” and be too vague to withstand a challenge since it did not define “reasonable terms.” Jonathan Band, an attorney who works on library issues, provided a rebuttal, replying that because the works are licensed and not sold, “the publishers’ rights remain undiminished.” He added that “[t]he state has a sufficient interest in imposing this modest condition on publishers” and explained how the legislation satisfies “the publishers’ due process rights” and provides “a detailed framework within which publishers and libraries can negotiate in good faith on a more level playing field than currently exists” to “help restore the equilibrium that digital technology has disrupted.” The legislation passed unanimously in both chambers, and the law has an effective date of Jan. 1, 2022.
Possible Effects and Follow-Up Legislation
The Maryland legislation is far from radical. It could have required that publishers license to libraries at the (far lower) costs offered to consumers, that preservation copies of licensed works be made available, or that digital sharing of books not available under license be legally permitted under controlled digital lending. Instead, legislators were asked simply to provide a modest, flexible framework for fairness and to ensure that public access to content is not limited to physical formats. The hope is that with the legislation in place, publishers will make content available under mutually agreeable terms and avoid restrictive practices such as windowing. Should a publisher refuse to offer content, Maryland libraries may now seek redress through the court system.
The law has drawn the interest of libraries in other states. Rhode Island is reconsidering its 2020 bill, and groups in Connecticut, Texas, Virginia, and Washington have begun explorations.
A How-To Primer
Libraries that are interested in putting forward bills should have five things in place, after ensuring that they have positive general relations with their elected officials:
- A governmental committee that follows legislation and can work to start new bills
- An effective lobbyist to help guide a complicated process, provide advice, and influence
- Legislative leaders: senators and house members to advocate
- Library champions: librarians who are deeply familiar with the digital content market, can create talking points, and are connected with advocacy groups that promote fair access to digital content
- An attorney to address inevitable challenges from opposing groups (ALA can help here)
The Maryland law is the first of its kind. It is a modest start, but Maryland libraries hope it will lead to progress in a market in which libraries’ only alternative to unfair licenses is to refuse to buy books—and that is directly counter to the libraries’ mission: access.