S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10544
 
                           I N  A S S E M B L Y
 
                               June 3, 2024
                                ___________
 
 Introduced  by  COMMITTEE  ON RULES -- (at request of M. of A. Santabar-
   bara) -- read once and referred to  the  Committee  on  Libraries  and
   Education Technology
 
 AN  ACT  to  amend  the education law, in relation to protecting library
   access to electronic literary materials
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The education law is amended by adding a new section 286 to
 read as follows:
   §  286.  ACCESS TO ELECTRONIC BOOKS AND DIGITAL AUDIOBOOKS. 1. FOR THE
 PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE  THE  FOLLOWING
 MEANINGS:
   A. "DIGITAL AUDIOBOOK" MEANS A PUBLISHED WORK THAT IS IN THE FORM OF A
 VOICE RECORDING (NARRATED) AND IS RELEASED AS A DIGITAL AUDIO FILE;
   B.  "ELECTRONIC  BOOK"  MEANS A PUBLISHED WORK THAT IS IN WRITTEN FORM
 AND IS RELEASED AS A DIGITAL TEXT FILE;
   C. "ELECTRONIC LITERARY MATERIALS"  MEANS  DIGITAL  AUDIOBOOKS  AND/OR
 ELECTRONIC BOOKS;
   D. "LIBRARIES" INCLUDES:
   (1) PUBLIC LIBRARIES;
   (2) PUBLIC ELEMENTARY SCHOOL OR SECONDARY SCHOOL LIBRARIES;
   (3) TRIBAL LIBRARIES;
   (4) ACADEMIC LIBRARIES;
   (5) RESEARCH LIBRARIES; AND
   (6) ARCHIVES;
   E.  "PUBLISHER" MEANS ONE WHOSE BUSINESS IS THE MANUFACTURE, PROMULGA-
 TION, LICENSE, AND/OR SALE OF BOOKS,  AUDIOBOOKS,  JOURNALS,  MAGAZINES,
 NEWSPAPERS, OR OTHER LITERARY PRODUCTIONS INCLUDING THOSE IN THE FORM OF
 ELECTRONIC LITERARY MATERIALS;
   F. "AGGREGATOR" MEANS ONE WHOSE BUSINESS IS THE LICENSING OF ACCESS TO
 ELECTRONIC  LITERARY MATERIAL COLLECTIONS THAT INCLUDE ELECTRONIC LITER-
 ARY MATERIAL FROM MULTIPLE PUBLISHERS;
   G. "LITERARY MONOGRAPH" MEANS A LITERARY WORK THAT IS PUBLISHED IN ONE
 VOLUME OR A FINITE NUMBER OF VOLUMES;

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD15079-01-4
 A. 10544                            2
 
   H. "TECHNOLOGICAL  PROTECTION  MEASURES"  MEANS  ANY  TECHNOLOGY  THAT
 ENHANCES THE SECURE LOANING AND/OR CIRCULATION BY A LIBRARY OF ELECTRON-
 IC LITERARY MATERIALS;
   I.  "BORROWER"  MEANS  A  PERSON  OR  ORGANIZATION,  INCLUDING ANOTHER
 LIBRARY, TO WHOM THE LIBRARY LOANS MEDIA OF ANY SORT;
   J. "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;
   K. "LOAN" MEANS CREATE AND TRANSMIT TO A BORROWER A COPY OF ELECTRONIC
 LITERARY MATERIAL AND DELETE IT AT THE END OF THE LOAN PERIOD;
   L. "LOAN PERIOD" MEANS THE TIME BETWEEN THE TRANSMISSION OF ELECTRONIC
 LITERARY  MATERIAL TO A BORROWER AND THE COPIES' DELETION, AS DETERMINED
 BY ANY INDIVIDUAL LIBRARY.
   2. A. ANY CONTRACT OFFERED BY A PUBLISHER TO A LIBRARY LOCATED IN  THE
 STATE  FOR THE PURPOSES OF LICENSING ELECTRONIC LITERARY MATERIAL TO THE
 PUBLIC SHALL BE GOVERNED BY THE LAWS OF THIS STATE.
   B. ANY CONTRACT TO PURCHASE OR LICENSE ELECTRONIC  LITERARY  MATERIALS
 THAT  INCLUDES A PROHIBITED PROVISION AS ENUMERATED IN SUBDIVISION THREE
 OF THIS SECTION IS UNCONSCIONABLE  PURSUANT  TO  SECTION  2-302  OF  THE
 UNIFORM  COMMERCIAL CODE IN VIOLATION OF PUBLIC POLICY IN THIS STATE AND
 IS DEEMED UNENFORCEABLE AND VOID. ANY WAIVER OF THE PROVISIONS  OF  THIS
 SECTION  IS  CONTRARY TO PUBLIC POLICY AND SHALL BE DEEMED UNENFORCEABLE
 AND VOID.
   C. THE PROHIBITED PROVISIONS AS ENUMERATED  IN  SUBDIVISION  THREE  OF
 THIS  SECTION SHALL ONLY APPLY TO LICENSING AGREEMENTS GOVERNING THE USE
 OF LITERARY MONOGRAPHS.
   D. THE PROHIBITED PROVISIONS AS ENUMERATED  IN  SUBDIVISION  THREE  OF
 THIS  SECTION  SHALL NOT APPLY TO LICENSING AGREEMENTS BETWEEN LIBRARIES
 AND AGGREGATORS.
   3. A CONTRACT BETWEEN A LIBRARY AND A PUBLISHER TO PURCHASE OR LICENSE
 ELECTRONIC LITERARY MATERIAL SHALL NOT CONTAIN ANY PROVISION THAT:
   A. PRECLUDES, LIMITS, OR RESTRICTS THE LIBRARY FROM  PERFORMING  THEIR
 CORE MISSIONS, INCLUDING ANY PROVISION THAT:
   (1)  PRECLUDES,  LIMITS, OR RESTRICTS THE LIBRARY FROM LICENSING ELEC-
 TRONIC LITERARY MATERIALS;
   (2) BARS THE LIBRARY FROM LOANING  ELECTRONIC  LITERARY  MATERIALS  TO
 BORROWERS;
   (3)  RESTRICTS  OR  LIMITS  THE LIBRARY'S RIGHT TO LOAN THE ELECTRONIC
 LITERARY MATERIALS TO BORROWERS USING TECHNOLOGICAL PROTECTION MEASURES;
   (4) RESTRICTS OR LIMITS THE USE OF TECHNOLOGICAL  PROTECTION  MEASURES
 FOR LOANING THE WORK TO BORROWERS;
   (5) RESTRICTS OR LIMITS THE LIBRARY'S RIGHT TO MAKE NON-PUBLIC PRESER-
 VATION COPIES OF THE ELECTRONIC LITERARY MATERIALS;
   (6)  RESTRICTS OR LIMITS THE LIBRARY'S RIGHT TO LOAN ELECTRONIC LITER-
 ARY MATERIALS VIA INTERLIBRARY LOAN SYSTEMS; OR
   (7) RESTRICTS OR LIMITS THE LIBRARY'S 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.
   B.  RESTRICTS THE NUMBER OF LICENSES FOR ELECTRONIC LITERARY MATERIALS
 THAT THE LIBRARY MAY ACQUIRE AFTER THE SAME ITEM IS  MADE  AVAILABLE  TO
 THE PUBLIC;
   C. REQUIRES THE LIBRARY TO ACQUIRE A LICENSE FOR ANY ELECTRONIC LITER-
 ARY  MATERIAL AT A PRICE GREATER THAN THAT CHARGED TO THE PUBLIC FOR THE
 SAME ITEM;
 A. 10544                            3
 
   D. RESTRICTS  THE  LIBRARY'S  RIGHT  TO  DETERMINE  LOAN  PERIODS  FOR
 LICENSED ELECTRONIC LITERARY MATERIALS;
   E.  RESTRICTS  THE  TOTAL  NUMBER  OF  TIMES  THE LIBRARY MAY LOAN ANY
 LICENSED ELECTRONIC LITERARY MATERIALS OVER THE COURSE  OF  ANY  LICENSE
 AGREEMENT;
   F. RESTRICTS THE DURATION OF ANY LICENSING AGREEMENTS;
   G.  RESTRICTS  THE  LIBRARY  FROM  DISCLOSING ANY TERMS OF ITS LICENSE
 AGREEMENTS TO OTHER LIBRARIES; OR
   H. REQUIRES THE LIBRARY TO VIOLATE THE LAW  PROTECTING  THE  CONFIDEN-
 TIALITY  OF  A  PATRON'S  LIBRARY RECORDS PURSUANT TO SECTION FORTY-FIVE
 HUNDRED NINE OF THE CIVIL PRACTICE LAW AND RULES.
   4. A. ANY CONTRACT TO PURCHASE OR LICENSE ELECTRONIC LITERARY  MATERI-
 ALS  THAT INCLUDES A PROHIBITED PROVISION LISTED IN SUBDIVISION THREE OF
 THIS SECTION SHALL CONSTITUTE AN UNFAIR AND DECEPTIVE  ACT  PURSUANT  TO
 SECTION  THREE  HUNDRED  FORTY-NINE OF THE GENERAL BUSINESS LAW, AND ANY
 REMEDY PROVIDED PURSUANT TO ARTICLE TWENTY-TWO-A OF THE GENERAL BUSINESS
 LAW SHALL BE AVAILABLE FOR THE ENFORCEMENT OF THIS SECTION.
   B. ANY PUBLISHER MAY SEEK THE OPINION  OF  THE  ATTORNEY  GENERAL  FOR
 GUIDANCE ON HOW TO COMPLY WITH THE PROVISIONS OF THIS SECTION.
   C.  ACTIONS  FOR  RELIEF  PURSUANT  TO  THIS SECTION MAY BE BROUGHT BY
 LIBRARIES, LIBRARY OFFICERS, OR BORROWERS OR SHALL  BE  BROUGHT  BY  THE
 ATTORNEY GENERAL.
   D.  ANY PUBLISHER THAT VIOLATES ANY PROVISION OF THIS SECTION SHALL BE
 SUBJECT TO AN INJUNCTION AND LIABLE FOR A CIVIL PENALTY OF NOT MORE THAN
 TWO THOUSAND FIVE HUNDRED DOLLARS FOR EACH VIOLATION OR  SEVEN  THOUSAND
 FIVE  HUNDRED  DOLLARS  FOR EACH INTENTIONAL VIOLATION, TO BE IMPOSED BY
 THE COURT.
   § 2. Severability. If any clause,  sentence,  paragraph,  subdivision,
 section, or part of this act shall be adjudged by any court of competent
 jurisdiction  to  be invalid, such judgment shall not affect, impair, or
 invalidate the remainder thereof, but shall be confined in its operation
 to the clause, sentence, paragraph, subdivision, section, or part there-
 of directly involved in the controversy in  which  such  judgment  shall
 have been rendered. It is hereby declared to be the intent of the legis-
 lature  that  this  act  would  have  been  enacted even if such invalid
 provisions had not been included herein.
   § 3. This act shall take effect immediately.