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Maryland Is First State to Expand Equitable Access to E-books through Libraries (updated)

Last Updated on September 19, 2022, 3:14 pm ET

photo of an e-book on a tablet computer screen propped up against a stack of print books
image CC0 by Perfecto Capucine

Final update:

On February 16, a judge granted the Association of American Publishers (AAP) motion for preliminary injunction of Maryland’s law requiring publishers to offer electronic literary materials to libraries on “reasonable terms.” The opinion holds that AAP was likely to succeed on its claim that the Maryland Act was preempted by the Copyright Act.
In a statement, the American Library Association (ALA) expressed disappointment that the court issued the preliminary injunction, and reiterated the injustice in library access to digital books.

December 20, 2021, update:

On December 16, the Association of American Publishers (AAP) filed a motion for preliminary injunction against the state of Maryland, claiming that the state’s new e-books law conflicts with the US Copyright Act and violates federal preemption principles; the motion follows a December 9 complaint filed by AAP alleging that the Maryland law is an overreach into federal copyright law.

The Maryland law does not conflict with the objectives of Congress; the very reason the Maryland law is necessary is because publishers have used contracts to supersede the rights Congress granted to libraries, and to limit the uses that libraries can make of copyrighted works. AAP claims that the “Maryland Act” is preempted by the Copyright Act under a theory of conflict preemption, which occurs when a challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. But as the motion acknowledges, Congress created certain special rights for libraries that enable them to reproduce and distribute certain copyrighted works without permission on a limited basis. The new Maryland law would support libraries in achieving the objectives that Congress laid out in the Copyright Act and the Intellectual Property Clause of the US Constitution.

In August, the US Copyright Office considered whether a theory of conflict preemption may apply to Maryland’s law, and similar laws under consideration by legislatures in Rhode Island and New York. In its analysis, the office acknowledged that courts have not had occasion to consider whether state laws like Maryland’s could avoid conflict preemption under narrow circumstances, such as upon a showing of a state interest that is sufficiently compelling and distinct from the Copyright Act’s purposes. Given the occasion, courts may recognize that the new law is meant to facilitate Maryland’s policy of “[p]rovid[ing] the widest possible access to the library and information resources of this State; and [e]nsur[ing] more effective and economical services to all library users.” 

According to intellectual property lawyer Jonathan Band, because the law regulates license terms, it does not implicate the Copyright Act at all, and the publishers’ rights will remain undiminished. For the library community, the law is a welcome attempt to prevent discrimination against public libraries in the absence of federal legislation that prevents unfair and unreasonable license terms. ARL will update this post with developments in this lawsuit.

Original post:

In a win for libraries and their users, Maryland is the first in the nation to enact a state law ensuring that libraries can license e-books and audiobooks under the same terms available to consumers.

The new law (Maryland House Bill 518) requires that publishers offer reasonable terms to public libraries when negotiating licenses for digital content. As the president of the Maryland Library Association testified, while the bill specifically names public libraries, academic and university libraries will also benefit from improved terms and business practices.

Both chambers of Maryland’s legislature passed the bill unanimously; the bill will become law without Governor Hogan’s signature. The new law will further Maryland’s policy of ensuring more effective and economical services to all library users.

Even before the COVID-19 pandemic limited access to physical books, e-books were a growing proportion of the US book market. According to the ARL Statistics [login required], e-books held by ARL member libraries as a proportion of volumes held increased from 14 percent in 2012 to 26 percent in 2019 as illustrated in the chart below.

bar chart showing number of e-books and volumes held by ARL university libraries 2012–2019 with line superimposed showing the proportion of e-books to volumes held

But libraries are sometimes precluded from acquiring and providing access to digital content like e-books. As the American Library Association has pointed out, this lack of access is a market failure that impedes libraries from best serving students, scholars, and other patrons in an increasingly digital world.

US libraries spend over $4 billion annually purchasing or licensing copyrighted works, most of which goes to licenses for digital content. Libraries are subject to pricing and lending terms that publishers set; in some cases, libraries pay five times more than consumers for digital content like e-books and audiobooks, as illustrated in the chart below. Publishers can also delay libraries’ access to new titles, restrict libraries from acquiring some content entirely, and even include digital locks that limit how many times a library can lend an e-book.

Prices of Top 5 New York Times Best Sellers,
September 2019

Title Consumer
e-book
Library
e-book
Consumer
e-audiobook
Library
e-audiobook
The Institute
by Stephen King
$14.99 $59.99 $14.95 $99.99
The Testaments
by Margaret Atwood
$14.99 $55.00 $14.95 $95.00
Where the Crawdads Sing
by Delia Owens
$14.99 $55.00 $14.95 $66.50
The Goldfinch
by Donna Tartt
$11.99 $65.00 $14.95 $65.00
The Titanic Secret
by Clive Cussler
$14.99 $55.00 $14.95 $95.00
Total cost $71.95 $289.99 $74.75 $421.49

 

Chart source: Testimony in support of Maryland House Bill 518 by sponsor Kathleen Dumais; original source: Central Arkansas Library System

The new state law will require any publisher offering an e-book to the public in Maryland to make that title available to a public library on reasonable terms, enabling libraries to license more books. The Maryland public libraries expect that the legislation will cause publishers to bring down the prices they charge libraries for e-books, although some price discrimination likely will remain. Additionally, the legislation will result in Maryland public libraries obtaining access to titles now available only to consumers.

Similar legislation is pending in other state legislatures, and the adoption of the law in Maryland can be expected to accelerate this legislation.

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