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April 20, 2023 | BusinessCopyright

Libraries Lobby for E-Book Bill

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Marc D. Ostrow

Of Counsel

Matthew Fulton

Associate Attorney

books in shelves

Libraries have long been a valuable resource for communities, providing crucial access to information and knowledge through community programming, internet access, physical books, and in recent years, digital books as well.  However, as the popularity of e-books continues to grow while funding for public libraries continues to dwindle, libraries are facing challenges in acquiring licenses from publishers at an affordable rate.  In response, libraries are lobbying for laws that would require publishers to offer lower rates for e-book licensing deals, which the libraries claim would help to make digital books more accessible to their customers.  Several states have proposed such laws, but  they may violate copyright law and infringe on the rights of publishers and authors.

Why are libraries lobbying for these laws?

Libraries play a critical role in providing access to information and knowledge for people from all walks of life.  However, in recent years, libraries have claimed to face challenges in acquiring e-book from publishers due to limited funding and the allegedly high costs involved with purchasing licenses.  In response, libraries are advocating for laws that would require publishers to offer discounted rates and terms for e-book licensing deals.  The libraries argue that by lowering the rates and relaxing the terms, more library users would be able to access digital books, which would help to bridge the digital divide and ensure equitable access to information.  Additionally, libraries are expanding their digital collections, but their budgets are often limited, making it difficult to acquire some of these licenses.  As such, the libraries view this as an equity issue, aimed at ensuring that everyone has access to the information they need to learn, grow, and succeed.

How have states responded?

The response of state legislatures to the e-book licensing laws proposed by libraries has been mixed. In total, nine states have proposed laws, including Massachusetts, Hawaii, Rhode Island, Connecticut, and Virginia.  Maryland was the first state to pass the bill in early 2021, with bipartisan support in the state legislature.  However, the law was struck down by a federal judge in 2022, who held that it was unconstitutional and unenforceable because it “frustrates the objectives and purposes” of the Copyright Act.  New York’s legislature also passed a nearly identical bill to Maryland’s, but it was vetoed by Governor Kathy Hochul in December 2021 on constitutional grounds following intense lobbying from the entertainment and publishing industries.  Despite these setbacks, some states are developing new language to address the issues raised by the court’s decision and push forward with their efforts to ensure equitable access to information for all.

What are the arguments in favor of these bills?

The arguments for the e-book licensing bills proposed by libraries are primarily centered around making information more accessible to the public.  Libraries are advocating for publishers to lower rates and relax the terms of e-book licensing deals so that libraries can more easily loan digital books.  This would make it easier for more library users to access these titles, particularly those who might not have the resources to purchase or access e-books on their own.  Additionally, libraries argue that they pay several times the cover price for e-book licenses, which strains their budgets and limits their ability to expand their digital collections.  As such, making e-books more accessible to libraries is viewed as an equity issue, as it seeks to grant as many people as possible access to information regardless of their socioeconomic status.

However, despite the arguments in favor of e-lending bills, some legal experts argue that these bills are pre-empted by the Copyright Act and are unconstitutional.  They argue that allowing libraries to loan out e-books without the publisher’s permission would infringe on the publisher’s exclusive right to distribute their works and could lead to decreased revenue and fewer resources for authors and publishers to create new works.

What are the arguments against these bills?

There are several arguments against the e-book licensing laws proposed by libraries.  One key argument is that federal copyright law does not allow states to enact laws that restrict the exclusive rights held by copyright holders.  Publishers are free to set their own prices.  These laws could destroy the incentives and protections of authors to license and exploit their exclusive rights to their works. Publishers also maintain that the rates they charge libraries are justified and reasonable based upon market concerns and that there is no shortage of access to e-books.

Another concern is that the mandatory licenses created by the Act would force an involuntary transfer of proprietary rights, which may constitute a violation of the Commerce Clause.  Due process concerns have also been raised, with some arguing that the term “reasonable” doesn’t provide publishers with a mechanism to know if they have violated the law.  Despite these arguments, libraries are pushing forward with their efforts to make e-books more accessible to the public, and some states are developing new language to address the concerns raised by opponents of the proposed laws.

Many opponents of these bills point to the underpinning purpose of copyright as a reason to oppose these bills.  Authors and publishers argue that by restricting the rights of copyright holders, the incentive for authors to write these works and for publishers to invest in them is removed.


While there are reasonable arguments on both sides of the debate over e-book licensing laws, it is important to note that the proposed e-lending bills are a violation of federal law and are unconstitutional.  Opponents argue that these bills infringe on the exclusive rights of copyright holders and undermine the purpose of copyright protection.  While libraries advocate for more accessible information, it is crucial to find solutions that do not infringe on the legal rights of publishers and authors.  Ultimately, a balance must be struck that addresses the interests of both parties while complying with federal law.

If you are an author or publisher and are concerned about your copyright protection, contact us today.

Photo by Will van Wingerden on Unsplash
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