Bill Text: NY S06868 | 2023-2024 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Protects library access to electronic literary materials by prohibiting certain restrictive provisions in contracts between publishers and libraries.

Spectrum: Moderate Partisan Bill (Democrat 5-1)

Status: (Engrossed) 2024-06-07 - ordered to third reading rules cal.554 [S06868 Detail]

Download: New_York-2023-S06868-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          6868

                               2023-2024 Regular Sessions

                    IN SENATE

                                      May 12, 2023
                                       ___________

        Introduced by Sens. CHU, MAY -- read twice and ordered printed, and when
          printed to be committed to the Committee on Libraries

        AN  ACT  to  amend  the  education  law, in relation to allowing library
          access to electronic books and digital audiobooks

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. The education law is amended by adding a new section 286 to
     2  read as follows:
     3    §  286.  Electronic  books and digital audiobooks. 1. Definitions. For
     4  purposes of this section, the following terms shall have  the  following
     5  meanings:
     6    a.  "Aggregator"  shall  mean  one  whose  business  is the selling or
     7  licensing of access to collections of electronic literary material  from
     8  multiple publishers.
     9    b.  "Borrower"  shall mean a person or organization, including another
    10  library, to whom a library loans electronic literary material.
    11    c. "Digital audiobook" shall mean a published work that is in the form
    12  of a narrated voice recording and is released as a digital audio file.
    13    d. "Electronic book" shall mean a published work that  is  in  written
    14  form and is released as a digital text file.
    15    e.  "Electronic  literary  material"  means  digital audiobooks and/or
    16  electronic books.
    17    f. "Libraries" shall include:
    18    (1) public libraries;
    19    (2) free association libraries;
    20    (3) school libraries and school library systems;
    21    (4) Indian libraries;
    22    (5) professional and technical libraries;
    23    (6) academic and research libraries;
    24    (7) special libraries;
    25    (8) talking book and braille libraries; and

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11047-01-3
        S. 6868                             2

     1    (9) archives.
     2    g.  "Loan"  shall  mean to create and transmit to a borrower a copy of
     3  electronic literary material and delete it at the end of the loan  peri-
     4  od.
     5    h.  "Loan  period"  shall  mean the time between the transmission to a
     6  borrower of a copy of electronic  literary  material  and  such  copies'
     7  deletion, as determined by the library providing the loan.
     8    i. "Publisher" shall mean:
     9    (1)  one  whose  business  is  the manufacture, promulgation, license,
    10  and/or sale of books, audiobooks, journals,  magazines,  newspapers,  or
    11  other literary productions, including electronic literary materials; and
    12    (2)  an  aggregator  who  enters into contracts with libraries for the
    13  purposes of licensing electronic literary material.
    14    j. "Technological protection measures" shall mean any technology  that
    15  ensures the secure loaning and/or circulation by a library of electronic
    16  literary material.
    17    k.  "Virtually"  shall  mean  transmitted to receiving parties via the
    18  Internet in such a  way  that  such  transmission  appears  before  such
    19  receiving parties on a computer, tablet, smart phone, or other electron-
    20  ic device.
    21    2. Contracts between libraries and publishers. a. Any contract offered
    22  by  a  publisher  to  a library located in the state for the purposes of
    23  licensing electronic literary material to the public shall  be  governed
    24  by the laws of the state.
    25    b.  A  contract  between  a  library  and  a publisher to provide such
    26  library  with  electronic  literary  material  shall  not  contain   any
    27  provision that:
    28    (1)  precludes,  limits,  or  restricts  the  library  from performing
    29  customary operational and lending functions, including:
    30    (i) licensing electronic literary material from publishers;
    31    (ii) loaning electronic literary material to borrowers;
    32    (iii) employing technological protection measures as is  necessary  to
    33  loan electronic library material;
    34    (iv)  making  non-public  preservation  copies  of electronic literary
    35  material;
    36    (v)  loaning  electronic  literary  material  via  interlibrary   loan
    37  systems;
    38    (vi) determining loan periods for licensed electronic literary materi-
    39  al;
    40    (vii)  virtually  reciting text and displaying artwork of any material
    41  to library patrons at a library facility, such that such material  would
    42  not have the same educational utility without such virtual recitation or
    43  display; and
    44    (viii)  disclosing  any  terms  of  its  license  agreements  to other
    45  libraries;
    46    (2) limits or restricts:
    47    (i) the number of licenses for electronic  literary  material  that  a
    48  library may acquire after such material is made available to the public;
    49  or
    50    (ii)  the  total  number of times that a library may loan any licensed
    51  electronic literary material over the course of any  license  agreement,
    52  or  the  duration  of  any  license agreement, unless the publisher also
    53  offers to such library a license agreement for perpetual public  use  of
    54  such  electronic  literary material without such limits or restrictions,
    55  at a price which is considered reasonable and equitable and agreed to by
    56  both parties; or
        S. 6868                             3

     1    (3) requires, coerces, or enables a library to:
     2    (i)  acquire a license for any electronic literary material at a price
     3  greater than that charged to the public for such material;
     4    (ii) pay a cost-per-circulation fee to loan electronic literary  mate-
     5  rial,  unless such fee is substantially lower in aggregate than the cost
     6  of purchasing such material; or
     7    (iii) violate the law protecting the  confidentiality  of  a  patron's
     8  library records pursuant to section forty-five hundred nine of the civil
     9  practice law and rules.
    10    3.  Unfair and deceptive trade practices; unconscionability; remedies.
    11  a.  (1) Offers to license electronic literary material  that  include  a
    12  provision  that is prohibited pursuant to paragraph b of subdivision two
    13  of this section shall constitute unfair and  deceptive  trade  practices
    14  pursuant  to  section  three  hundred forty-nine of the general business
    15  law, and any remedy provided pursuant to  article  twenty-two-A  of  the
    16  general  business  law  shall  be  available for the enforcement of this
    17  section.
    18    (2) Actions for relief pursuant to this  section  may  be  brought  by
    19  libraries, library officers, or borrowers.
    20    (3)  Parties  shall  be  enjoined by the courts from enforcing license
    21  agreements that include a provision that is prohibited pursuant to para-
    22  graph b of subdivision two of this section.
    23    b. Contracts to license electronic literary material  that  include  a
    24  provision  that is prohibited pursuant to paragraph b of subdivision two
    25  of this section shall be unconscionable pursuant to section 2-302 of the
    26  uniform commercial code in violation of the public policy of this  state
    27  and shall be deemed unenforceable and void. Any waiver of the provisions
    28  of this section shall be deemed unenforceable and void.
    29    c.  Any  publisher  that  violates this section shall be subject to an
    30  injunction and liable to pay a civil penalty of not more than two  thou-
    31  sand  five  hundred  dollars  for  each violation or seven thousand five
    32  hundred dollars for each intentional violation, to  be  imposed  by  the
    33  courts.
    34    4. Existing contracts. Nothing in this section shall apply to existing
    35  contracts  between  libraries  and  publishers to provide such libraries
    36  with electronic literary material that are in force prior to the  effec-
    37  tive date of this section.
    38    §  2.  Severability.  If any clause, sentence, paragraph, subdivision,
    39  section, or part of this act shall be adjudged by any court of competent
    40  jurisdiction to be invalid, such judgment shall not affect,  impair,  or
    41  invalidate the remainder thereof, but shall be confined in its operation
    42  to the clause, sentence, paragraph, subdivision, section, or part there-
    43  of  directly  involved  in  the controversy in which such judgment shall
    44  have been rendered. It is hereby declared to be the intent of the legis-
    45  lature that this act would  have  been  enacted  even  if  such  invalid
    46  provisions had not been included herein.
    47    § 3. This act shall take effect immediately.