Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H3239 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 of 1
2	2	HOUSE DOCKET, NO. 3425 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 3239
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Ruth B. Balser
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act empowering library access to electronic books and digital audiobooks.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Ruth B. Balser12th Middlesex1/20/2023Brian W. Murray10th Worcester1/27/2023Natalie M. Higgins4th Worcester2/17/2023Patrick Joseph Kearney4th Plymouth3/8/2023 1 of 7
16	16	HOUSE DOCKET, NO. 3425 FILED ON: 1/20/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 3239
18	18	By Representative Balser of Newton, a petition (accompanied by bill, House, No. 3239) of Ruth
19	19	B. Balser and others relative to authorizing library access to electronic books and digital
20	20	audiobooks. Tourism, Arts and Cultural Development.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Third General Court
24	24	(2023-2024)
25	25	_______________
26	26	An Act empowering library access to electronic books and digital audiobooks.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 Chapter 78 of the General Laws is hereby amended by adding the following section:
30	30	2 SECTION 35. An Act empowering library access to electronic books and digital
31	31	3audiobooks.
32	32	4 A. Definitions
33	33	5 For purposes of this act, the following terms mean:
34	34	6 (1) “Digital audiobook” means a published work that is in the form of a voice recording
35	35	7(narrated) and is released as a digital audio file;
36	36	8 (2) “Electronic book” means a published work that is in written form and is released as a
37	37	9digital text file; 2 of 7
38	38	10 (3) “Electronic literary materials” means digital audiobooks and/or electronic books;
39	39	11
40	40	12 (4) “Libraries” include:
41	41	13 (A) public libraries;
42	42	14 (B) public elementary school or secondary school libraries;
43	43	15 (C) tribal libraries;
44	44	16 (D) academic libraries;
45	45	17 (E) research libraries;
46	46	18 (F) special libraries
47	47	19 (G) talking book libraries; and
48	48	20 (H) archives;
49	49	21 (5) "Publisher" means one whose business is the manufacture, promulgation, license,
50	50	22and/or sale of books, audiobooks, journals, magazines, newspapers, or other literary productions
51	51	23including those in the form of electronic literary materials. For the purposes of this bill the term
52	52	24‘publisher’ shall also include aggregators who enter into contracts with libraries for the purposes
53	53	25of providing materials for purchase or license from the publishers;
54	54	26 (6) “Aggregator” means one whose business is the licensing of access to electronic
55	55	27literary material collections that include electronic literary material from multiple publishers;
56	56	28 3 of 7
57	57	29 (7) “Literary monograph” means a literary work that is published in one volume or a
58	58	30finite number of volumes;
59	59	31 (8) “Technological protection measures” means any technology that ensures the secure
60	60	32loaning and/or circulation by a library of electronic literary materials;
61	61	33 (9) “Borrower” means a person or organization, including another library, to whom the
62	62	34library loans electronic literary materials of any sort;
63	63	35 (10) “Virtually” means transmitted to receiving parties via the Internet in such a way that
64	64	36the transmission appears in front of the receiving parties on a computer, tablet, smart phone, or
65	65	37electronic device;
66	66	38 (11) “Loan” means create and transmit to a borrower a copy of electronic literary
67	67	39material and delete it at the end of the loan period;
68	68	40 (12) “Loan period” means the time between the transmission of electronic literary
69	69	41material to a borrower and the copies’ deletion, as determined by any individual library.
70	70	42
71	71	43 B. Contracts Between Libraries and Publishers
72	72	44 (a) Any contract offered by a publisher to a library for the purposes of licensing
73	73	45electronic literary materials to the public in this state is governed by Massachusetts law.
74	74	46 (b) A contract between a library and a publisher shall contain no provision that:
75	75	47 (1) Precludes, limits, or restricts the library from performing customary operational
76	76	48functions, including any provision that: 4 of 7
77	77	49 (A) Precludes, limits, or restricts the library from licensing electronic literary materials
78	78	50from publishers;
79	79	51 (B) Precludes, limits, or restricts the library’s ability to employ technological protection
80	80	52measures as is necessary to loan the electronic literary materials;
81	81	53 (C) Precludes, limits, or restricts the library's right to make non-public preservation
82	82	54copies of the electronic literary materials;
83	83	55 (D) Precludes, limits, or restricts the library’s right to loan electronic literary materials
84	84	56via interlibrary loan systems; or
85	85	57 (2) Precludes, limits, or restricts the library from performing customary lending
86	86	58functions, including any provision that:
87	87	59 (A) Precludes, limits, or restricts the library from loaning electronic literary materials to
88	88	60borrowers;
89	89	61 (B) Restricts the library’s right to determine loan periods for licensed electronic literary
90	90	62materials;
91	91	63 (C) Requires the library to acquire a license for any electronic literary material at a price
92	92	64greater than that charged to the public for the same item;
93	93	65 (D) Restricts the number of licenses for electronic literary materials that the library may
94	94	66acquire after the same item is made available to the public;
95	95	67 (E) Requires the library to pay a cost-per-circulation fee to loan electronic literary
96	96	68materials, unless substantially lower in aggregate than the cost of purchasing the item outright; 5 of 7
97	97	69 (F) Restricts the total number of times a library may loan any licensed electronic literary
98	98	70materials over the course of any license agreement, or restricts the duration of any license
99	99	71agreement; unless the publisher also offers a license agreement to libraries for perpetual public
100	100	72use without such restrictions; at a price which is considered reasonable and equitable as agreed to
101	101	73by both parties
102	102	74 (G) Restricts or limits the library’s ability to virtually recite text and display artwork of
103	103	75any materials to library patrons such that the materials would not have the same educational
104	104	76utility as when recited or displayed at a library facility;
105	105	77 (3) Restricts the library from disclosing any terms of its license agreements to other
106	106	78libraries.
107	107	79 (4) Requires, coerces, or enables the library to violate the law protecting the
108	108	80confidentiality of a patron’s library records found in Chapter 78, Section 7.
109	109	81 C. Remedies
110	110	82 (A) Unfair and Deceptive Practices
111	111	83 (1) Offers to license electronic literary materials that include a prohibited provision listed
112	112	84in Section 3 constitute unfair and deceptive practices within the meaning of Section 2 of Chapter
113	113	8593A, Regulation of Business Practices for Consumer Protection, and any remedy provided
114	114	86pursuant to Chapter 93A shall be available for the enforcement of this act.
115	115	87 (2) Actions for relief pursuant to this act may be brought by libraries, library officers, or
116	116	88borrowers. 6 of 7
117	117	89 (3) Parties shall be enjoined by the courts from enforcing license agreements that include
118	118	90a prohibited provision listed in Section 3.
119	119	91 (B) Unconscionability
120	120	92 (1) Contracts to license electronic literary materials that include prohibited provisions
121	121	93listed in Section 3 of this chapter are unconscionable within the meaning of Chapter 106, Section
122	122	942-302 in violation of Massachusetts public policy and are deemed unenforceable and void. Any
123	123	95waiver of the provisions of this title is contrary to public policy and shall be deemed
124	124	96unenforceable and void.
125	125	97 (C) Any publisher that violates this title shall be subject to an injunction and liable for a
126	126	98civil penalty of not more than two thousand five hundred dollars ($2,500) for each violation or
127	127	99seven thousand five hundred dollars ($7,500) for each intentional violation, which shall be
128	128	100imposed by the court.
129	129	101 D. Severability
130	130	102 The provisions of this act are severable. If any provision of this act or its application is
131	131	103held invalid, that invalidity shall not affect other provisions or applications that can be given
132	132	104effect without the invalid provision or application.
133	133	105 E. Existing Contracts
134	134	106 Nothing in this subsection affects existing contracts that are currently in force providing
135	135	107libraries with electronic literary products from vendors and aggregators.
136	136	108 F. Effective Date 7 of 7
137	137	109 This act shall take effect upon its enactment into law unless otherwise specified. The
138	138	110provisions of this act apply to transactions entered into and events occurring after such date.