Senator wants Copyright Office to look into Maryland Library’s eBook law


At an online seminar this week, U.S. Copyright Registry Shira Perlmutter revealed that some members of Congress have asked the Copyright Office to rule on the constitutionality of Maryland’s new library e-book law. . However, Perlmutter did not reveal what stage a possible review might be, and Copyright Office officials declined to comment further.

“All we can say is that the Bureau continues to work to respond to the requests we have received from senators,” said a spokesperson for the Copyright Office. PW.

TP knows one lawmaker who has raised concerns: North Carolina Senator Thom Tillis, a senior member of the Senate Judiciary Committee’s intellectual property subcommittee.

In a May 26 letter, Tillis echoed concerns expressed by the Association of American Publishers in its written testimony to Maryland lawmakers on May 24, including a claim that the Maryland Library eBook Act is unconstitutional because it “encroaches on the exclusive domain” of the federal government. copyright.

When it comes into force in January 2022, Maryland law (known as SB432) will require any publisher offering to license “an electronic literary product” to consumers in the state to also offer to license. content to public libraries on “reasonable” terms. .

Jonathan Band, a legal counsel for the library community who has consulted on the Maryland law insists that it is constitutional, not preempted by federal copyright law, and is narrowly designed to “prevent the unreasonable discrimination ”against public libraries. “The [Maryland law does] not force publishers to transfer any of their exclusive rights, ”insists Band,“ and the rights of publishers remain intact. “

In his letter, Tillis asked Perlmutter, acting in his capacity of “expert adviser to Congress on copyright matters”, to speak out and “clarify whether federal preemption applies.”

The bill passed unanimously by the Maryland General Assembly in March and became law on June 1. Meanwhile, laws like Maryland’s are gaining traction in other state legislatures. In June, New York passed a similar law that is now awaiting the governor’s signature or veto. At least half a dozen states have reportedly started studying similar legislation.

Tillis’ request for advice is not uncommon. One of the functions of the Copyright Registry is to advise Congress on copyright matters and these opinions are regularly sought by lawmakers on a range of issues. But whatever opinion the Copyright Office weighs in, Band told PW, it is unlikely to have an impact on Maryland law.

“The Copyright Office’s opinion on a state law will not influence how a court interprets state law,” Band told PW. “Indeed, the Supreme Court recently indicated that the courts do not need to defer to the Copyright Office even when interpreting the Copyright Act.”

An unfavorable Copyright Office notice, however, could discourage other states from adopting similar legislation – something Tillis himself acknowledges in his letter, concluding that a Copyright Office notice “would provide useful guidance to states so that ‘they can avoid proposing or adopting legislation that is preempted by the Copyright Act.

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