A pair of bills making their way through the Connecticut state legislature both aim to set parameters on the licensing terms and contracts for ebooks and e-audiobooks that libraries will be able to accept from publishers and aggregators. HB 5312 and SB 148 would prohibit libraries from entering into a contract or licensing agreement “that precludes, limits, or restricts the library from performing customary operational or lending functions,” including restrictions on the number of times a library can loan an ebook or audiobook, restrictions on making nonpublic preservation copies of electronic literary material, and restrictions against interlibrary loans of ebooks and e-audiobooks.

The bills are the legislature’s most recent attempt to make publishers offer ebooks and e-audiobooks to the state’s libraries on more favorable terms. A similar bill was introduced in 2023, but it died in the legislature’s Appropriations Committee. In 2022, State Senator Tony Hwang introduced a bill similar to others in states such as Maryland, New York, and Rhode Island that would have required publishers to sell ebooks and e-audiobooks to libraries “on reasonable terms.” In Connecticut, the legislation “did get a hearing—and it was very popular with legislators—but…we didn't have the right language, so the bill really didn't go anywhere,” Connecticut Library Consortium Executive Director Ellen Paul told LJ. “You can’t force a copyright holder to sell to anyone.” A court later struck down Maryland’s “reasonable terms” law in June 2022, with Judge Deborah L. Boardman declaring it “unconstitutional and unenforceable.”

Connecticut legislators began refining their approach to the issue in 2023 and 2024, with new bills using model language from Library Futures, a project of the Engelberg Center on Innovation Law and Policy at New York University. This legislation doesn’t attempt to compel publishers to sell ebooks and e-audiobooks to libraries “on reasonable terms.” Instead, the bills now say “if the publishers want to sell to libraries, here are the terms and conditions that you must follow,” Paul summarized. “So, we are not forcing publishers to participate in the marketplace, but instead saying if you’d like to participate, here are the contract terms and conditions you must follow, because contract law is absolutely under the jurisdiction of the state of Connecticut.”

In addition, Paul believes the bills are further strengthened by being tied to existing procurement law in the state. “When you’re spending state dollars, or when you’re spending municipal tax dollars…you need to be cost conscious and do that in a reasonable and responsible way,” she said. “If I can negotiate with Baker & Taylor on print books for discounts, and I can negotiate with Ingram for discounts on print books, and they come up with different discount structures that meet the goals of their business and also the goals of the libraries in Connecticut, why doesn’t the same process work for ebooks?”

Publishing organizations have lobbied against the bill, arguing that—like the “reasonable terms” legislation—these bills are still in conflict with federal copyright law.

“SB 148 remains an attempt to weaken intellectual property rights and undermine the cohesive federal Copyright Act,” Independent Book Publishers Association (IBPA) CEO Andrea Fleck-Nisbet and IBPA Board of Directors leader Kurt Brackob wrote in a testimony submitted to legislators. “It is unconstitutional and has the potential to open the state up to legal challenges. It is detrimental to small businesses and will be make it too dangerous for independent publishers to market their materials to Connecticut libraries, thereby undermining the bill’s purported goal of making materials more accessible to Connecticut readers…. SB 148 would ultimately compel publishers to accept licenses they might otherwise choose to object or, tragically, as we stated previously, may force them not to offer their works to libraries at all.”

Paul said that publishing groups are already threatening litigation if the bills are passed into law, although officials at the office of the Connecticut Attorney General have told the bills’ supporters that they are legally sound. Paul added that—to IBPA’s point—she recognizes that the passage of these bills could potentially result in some publishers deciding to not license ebooks or e-audiobooks to libraries in Connecticut. However, she said, ebook and e-audiobook pricing and licensing terms for libraries are becoming untenable. “Libraries have been lending ebooks for 20 years, and the pricing, terms, and conditions get worse each year,” she said. “I think that libraries have been trying to negotiate with aggregators and publishers for at least the last 10 to 12 years without much success. I don’t think that any of us wanted to get to the point where we were approaching our state government to remedy this problem. I think we would have preferred to be able to just work it out between ourselves. But enough time has gone by, [and] we have had no indication that we can be successful in that type of negotiation.”

There are less than two weeks left in this year’s legislative session, “so if something is going to happen [with the 2024 versions of the bills], it really needs to happen quick,” Paul said. But if the bills do not pass this year, she is confident that new versions will continue to be put forward in future sessions. “That’s how state legislatures work,” she said. “Nothing happens overnight; legislation usually takes years…. But when we have conversations with legislators here in Connecticut, we find that we have really broad support.”

It’s still an uphill battle, though, Paul said. “We don’t have a lobbyist, and we’re not spending any money on this. This is volunteer-based through the Connecticut Library Association, and me [at the Connecticut Library Consortium], and the state library, and whoever we can dig up to help us with this. But we don’t have millions of dollars to spend on lobbyists, and they do. We don’t have billions of dollars to spend on attorneys, and they do.”