Bill Text: NY S06868 | 2023-2024 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Protects library access to electronic literary materials by prohibiting certain restrictive provisions in contracts between publishers and libraries.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Engrossed) 2024-06-07 - ordered to third reading rules cal.554 [S06868 Detail]
Download: New_York-2023-S06868-Introduced.html
Bill Title: Protects library access to electronic literary materials by prohibiting certain restrictive provisions in contracts between publishers and libraries.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Engrossed) 2024-06-07 - ordered to third reading rules cal.554 [S06868 Detail]
Download: New_York-2023-S06868-Introduced.html
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. LBD11047-01-3S. 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; orS. 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.
