E-book access bill draws opposition from publishers

This screen shot taken from an Kindle Fire HDX shows “The Hobbit” audiobook by J.R.R. Tolkien.

This screen shot taken from an Kindle Fire HDX shows “The Hobbit” audiobook by J.R.R. Tolkien. Uncredited

By Alison Kuznitz

State House News Service

Published: 11-01-2023 3:29 PM

BOSTON — A redrafted bill to expand access to e-books and digital audiobooks in Massachusetts would not violate federal law, librarians said Monday, as they sought to quash concerns about a similar law in Maryland that was deemed unconstitutional last year.

Rep. Ruth Balser’s e-book proposal last session used as a template the popular Maryland bill, which triggered a lawsuit from the Association of American Publishers (AAP), and was sent to study. The Newton Democrat said her revised pitch (H 3239) complies with federal law, but the national group of publishers say the bill still conflicts with copyright law and would devalue the intellectual property of authors.

Balser said the legislation aims to ensure fairer licensing agreements between publishers and public libraries, which must contend with steeper costs and a raft of restrictions for obtaining e-books and digital audiobooks compared to physical books. Public libraries often need to pay five to six times as much for an e-book compared to a hard copy — and those e-book licenses expire after a certain amount of duration or number of checkouts, making it difficult for libraries to maintain or expand their collections for patrons, according to the Massachusetts Library Association.

“We want to make sure that libraries can continue to meet their mission in the 21st century,” Balser told the Joint Committee on Tourism, Arts and Cultural Development Monday, as she recalled a constituent who informed her about how major publisher companies, such as Amazon, have curtailed libraries’ access to electronic materials. “If a company does license with libraries in Massachusetts, the terms have to be fair, and we want to make sure that libraries have full access to this material.”

About 30 lawmakers have signed onto the bill — which applies to public libraries and other settings, such as libraries in public schools — since it was filed in January.

E-books and audiobooks are critical alternatives for people with visual or learning disabilities, plus residents who are unable to travel to physical libraries, lawmakers and advocates said at the hearing. But the pricing structure makes it difficult for libraries to purchase sufficient copies of popular or diverse books, which could lead to months-long waits for patrons, librarians said.

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A two-year license for a Stephen King digital audiobook can cost a public library $130, though consumers can buy it for just $26 and keep it forever, said Kathy Lussier, executive director of the North of Boston Library Exchange. That’s not a sustainable model, she said.

Balser’s bill requires electronic licenses to be offered at a price that isn’t more than what the public is being charged. It also creates a path for publishers to offer “perpetual” license agreements to libraries at a price considered “reasonable and equitable,” according to the legislation.

“This bill is grounded in Massachusetts consumer protection law; it uses the powers of state government to regulate the terms of library book contracts,” Lussier said. “Librarians aren’t looking to hurt publishers or authors. We’re just looking for reasonable terms. We have always been strong partners with these two groups, and we want them to thrive.”

AAP general counsel Terry Hart said the organization, which represents “hundreds of thousands of authors and creators” in Massachusetts and throughout the country, opposes Balser’s legislation, as well as a similar bill before the committee from former Sen. Anne Gobi (S 2188).

Hart said the proposals conflict with the U.S. Copyright Act, which protects the distribution of literary works among authors and publishers. Authors would not be properly compensated and intellectual property would be devalued should the bills move forward, he said.

“This legislation threatens the entire creative economy,” said Hart, who also explained the vulnerable status of e-books. “They can be easily copied, made perfect copies, made unlimited number of copies, that publishers approach their licensing of e-books to libraries for digital lending in a different way than physical books.”

The Authors Alliance — a nonprofit organization with 2,500 members from various writing backgrounds, including journalists, poets and academic authors — supports Balser’s bill, said executive director Dave Hansen. He condemned publishers’ “evil contract terms” for threatening the democratic role of libraries in the “online world.”

Unlike Balser’s latest bill, Hansen said the Maryland e-book law conflicted with federal law because it forced publishers to license their e-books to libraries. The Maryland law, which took effect last year and was struck down by a federal judge, required publishers to offer those licenses if the e-books were also available to the public, according to the AP.

“This bill does no such thing — it’s carefully and narrowly crafted,” Hansen of Balser’s proposal. “It doesn’t compel publishers to license. Instead, it merely provides that Massachusetts and its contract law will not be used to aid publishers in their efforts to limit libraries’ rights.”

The Boston Public Library (BPL) spent more than $2.5 million on e-book content last year, with demand for the digital option surpassing that of physical books, said president David Leonard. He lamented BPL’s budget cannot rise by five or six times to keep pace with the cost difference between e-books and hard copies.

“We are not able to meet the demand due to the wait times and holds as a factor of the increased cost,” Leonard said.