HB 1342-FN - AS INTRODUCED
2024 SESSION
24-2147
12/05
HOUSE BILL 1342-FN
AN ACT relative to the licensing of electronic literary materials by libraries.
SPONSORS: Rep. Filiault, Ches. 7
COMMITTEE: Municipal and County Government
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ANALYSIS
This bill regulates the acquisition and distribution of electronic literary materials between libraries, publishers, and the public.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-2147
12/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to the licensing of electronic literary materials by libraries.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Libraries: Electronic Literary Material; Acquisition and Distribution. Amend RSA by inserting after chapter 202-B the following new chapter:
CHAPTER 202-C
LIBRARIES: ELECTRONIC LITERARY MATERIAL; ACQUISITION AND DISTRIBUTION
202-C:1 Definitions. In this chapter:
I. “Digital audio book” means a published work that is in the form of a narrated voice recording and is released as a digital audio file.
II. “Electronic book” means a published work that is in written form and is released as a digital text file.
III. “Portable electronic device” means any self-contained electronic device for personal use for communicating, reading, viewing, listening, playing video games, or computing, including a mobile telephone, tablet computer, electronic book reader, and other similar devices.
IV. “Electronic literary materials” means digital audio books and/or electronic books.
V. “Libraries” means public libraries, public elementary school or secondary school libraries, tribal libraries, academic libraries, research libraries, special libraries, consortial library systems, talking book libraries, and archives.
VI. "Publisher" means one whose business is the manufacture, promulgation, license, and/or sale of books, audio books, journals, magazines, newspapers, or other literary productions including those in the form of electronic literary materials. For the purposes of this bill the term ‘publisher’ shall also include aggregate who enter into contracts with libraries for the purposes of providing materials for purchase or license from the publishers.
VII. “Aggregate” means one whose business is the licensing of access to electronic literary material collections that include electronic literary material from multiple publishers.
VIII. “Literary monograph” means a literary work that is published in one volume or a finite number of volumes.
IX. “Technological protection measures” means any technology that ensures the secure loaning and/or circulation by a library of electronic literary materials.
X. “Borrower” means a person or organization, including another library, to whom the library loans electronic literary materials of any sort.
XI. “Virtually” means transmitted to receiving parties via the Internet in such a way that the transmission appears in front of the receiving parties on a computer, tablet, smart phone, or electronic device.
XII. “Loan” means create and transmit to a borrower a copy of electronic literary material and delete it at the end of the loan period.
XIII. “Loan period” means the time between the transmission of electronic literary material to a borrower and the time of deletion, as determined by any individual library.
XIV. “Reasonable terms" means purchase or licensing specifications listed in RSA 202-C:2, II that consider a publisher's business model as well as a library's need to continue its mission to provide access to materials and the efficient use of funds in providing library services.
202-C:2 Contracts between Libraries and Publishers.
I. Contracts or license agreements between publishers and libraries shall not preclude, limit, or restrict the library from performing customary operational functions including any provision that precludes, limits, or restricts the library from licensing electronic literary material from publishers, employing technological protection measures necessary to loan electronic literary materials, making nonpublic preservation copies of electronic literary materials or loaning electronic literary materials via interlibrary loan systems.
II. Contracts or license agreements between publishers and libraries shall not preclude, limit, or restrict the library from performing customary lending functions including any provision that:
(a) Precludes, limits, or restricts the library from loaning electronic literary materials to borrowers, determining loan periods for licensed electronic literary materials, acquiring a license for any electronic literary material at a price greater than that charged to the public for the same item, the number of licenses for electronic literary materials that the library may acquire after the same item is made available to the public, the total number of times a library may loan any licensed electronic literary materials over the course of any license agreement, ability to virtually recite text and display artwork of any materials to library patrons such that the materials would not have the same educational utility as when recited or displayed at a library facility, disclosing any terms of its license agreements to other libraries, or the duration of any license agreement unless the publisher also offers a license agreement to libraries for perpetual public use without such restrictions, at a price which is considered reasonable and equitable as agreed to by both parties.
(b) Contracts or license agreements between publishers and libraries shall not require libraries to pay a cost-per-circulation fee to loan electronic literary materials, unless substantially lower in aggregate than the cost of purchasing the item outright or require.
(c) Contracts or license agreements between publishers and libraries shall not coerce, or enable the library to violate the law protecting the confidentiality of a patron’s library records found in RSA 201-D:11.
202-C:3 Remedies; Violation of the Consumer Protection Act. A violation of this chapter is considered to be a violation of the consumer protection act, RSA 358-A, and all remedies of the consumer protection act are available for such violations. Actions may brought by libraries, library officers, borrowers the attorney general or pursuant to RSA 358-A:4. Parties shall be enjoined from enforcing contracts or licensing agreements that are contrary to this chapter.
202-C:4 Unconscionability. Contracts to license electronic literary materials to a library that include prohibited provisions listed in this chapter are unconscionable within the meaning of RSA 382-A:2-302 in violation of New Hampshire law and public policy and are deemed unenforceable and void. Any waiver of the provisions of this title is contrary to public policy and shall be deemed unenforceable and void.
202-C:5 Severability; The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
2 Applicability; Existing Contracts. Nothing in this act affects existing contracts providing libraries with electronic literary material from vendors and aggregators. This act shall apply to any contract entered into on or after January 1, 2025.
3 Effective Date. This act shall take effect January 1, 2025.
24-2147
11/14/23
HB 1342-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to the licensing of electronic literary materials by libraries.
FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None
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Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | $0 | $0 | $0 | ||
Revenue Fund | None | |||||
Expenditures | Indeterminable | |||||
Funding Source | General Fund | |||||
Appropriations | $0 | $0 | $0 | $0 | ||
Funding Source | None | |||||
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Estimated Political Subdivision Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
County Revenue | $0 | $0 | $0 | $0 | ||
County Expenditures | Indeterminable | |||||
Local Revenue | $0 | $0 | $0 | $0 | ||
Local Expenditures | Indeterminable | |||||
METHODOLOGY:
This bill adds, deletes, or modifies a criminal penalty, or changes statute to which there is a penalty for violation. Therefore, this bill may have an impact on the judicial and correctional systems, which could affect prosecution, incarceration, probation, and parole costs, for the state, as well as county and local governments. A summary of such costs can be found at: https://gencourt.state.nh.us/lba/Budget/Fiscal_Notes/JudicialCorrectionalCosts.pdf
AGENCIES CONTACTED:
Judicial Branch, Judicial Council, Department of Justice, Department of Corrections, New Hampshire Association of Counties, and New Hampshire Municipal Association