Provisions describing authorized uses and users of licensed information are the core of the license agreement. They set out who may access licensed information, when users may access it, and what they can do with the information after they have it. Keep these important issues in mind when negotiating usage provisions:
Agreements often include provisions expressly forbidding access to certain persons or entities or limiting the circumstances under which permitted users may access licensed materials. Limitations on the library’s or its patrons’ rights to copy portions of licensed materials are particularly troublesome. Such limitations may restrict uses of digital information that are protected under federal copyright laws.
As the sample clauses show, licensors limit access and use of digital information in a number of ways, including limitations on:
Such provisions, if too narrowly drawn, may unduly interfere with serving library patrons and so they should be very carefully scrutinized. It is unwise to agree to limit uses that the library is normally expected to accommodate.
When considering licensors’ desired restrictions, licensees should keep in mind that the fair use provisions of the Copyright Act can be modified by a negotiated contract. If a license agreement expressly acknowledges fair use or is silent as to how licensed materials may or may not be copied, fair use will apply, but if the parties agree to limitations on copying that are more restrictive than would otherwise be permitted under the Copyright Act, the licensee cannot later claim broader rights under the law.
On the other hand, parties to an agreement generally cannot bargain away the rights of someone who is not a party. Thus, library patrons who are not at the table when an agreement is negotiated, and who do not sign anything, may not be governed by the terms of the agreement, and may continue to enjoy the full protection of Copyright Law regardless of the restrictions on their rights in such an agreement. Licensors, however, may attempt to hold the library responsible for the actions of its patrons. Thus, even though an agreement limiting the rights of a library patron might not be enforceable against the patron personally, the library might nevertheless be held responsible for the patron’s behavior.
Given these circumstances, licensees have several choices if they wish to ensure their and their patrons’ rights of fair use:
Digitally Copy. Licensee and Authorized Users may download and digitally copy a reasonable portion of the Licensed Materials.
Print Copy. Licensee and Authorized Users may print a reasonable portion of the Licensed Materials.
Recover Copying Costs. Licensee may charge a fee to cover costs of copying or printing portions of Licensed Materials for Authorized Users.
Archival/Backup Copy. Upon request of Licensee, Licensee may receive from Licensor and/or create one (1) copy of the entire set of Licensed Materials to be maintained as a backup or archival copy during the term of this Agreement or as required to exercise Licensee’s rights under Section XIII, “Perpetual License”, of this Agreement.
Course Packs. Licensee and Authorized Users may use a reasonable portion of the Licensed Materials in the preparation of Course Packs or other educational materials.
Electronic Reserve. Licensee and Authorized Users may use a reasonable portion of the Licensed Materials for use in connection with specific courses of instruction offered by Licensee and/or its parent institution.
Databases. If the Licensed Materials are a database, compilation, or collection of information, Authorized Users shall be permitted to extract or use information contained in the database for educational, scientific, or research purposes, including extraction and manipulation of information for the purpose of illustration, explanation, example, comment, criticism, teaching, research, or analysis.
Electronic Links. Licensee may provide electronic links to the Licensed Materials from Licensee’s web page(s), and is encouraged to do so in ways that will increase the usefulness of the Licensed Materials to Authorized Users. Licensor staff will assist Licensee upon request in creating such links effectively. Licensee may make changes in the appearance of such links and/or in statements accompanying such links as reasonably requested by Licensor.
Caching. Licensee and Authorized Users may make such local digital copies of the Licensed Materials as are necessary to ensure efficient use by Authorized Users by appropriate browser or other software.
Indices. Licensee may use the Licensed Materials in connection with the preparation of or access to integrated indices to the Licensed Materials, including author, article, abstract and keyword indices.
Scholarly Sharing. Authorized Users may transmit to a third party colleague in hard copy or electronically, minimal, insubstantial amounts of the Licensed Materials for personal use or scholarly, educational, or scientific research or professional use but in no case for re-sale. In addition, Authorized Users have the right to use, with appropriate credit, figures, tables and brief excerpts from the Licensed Materials in the Authorized User’s own scientific, scholarly and educational works.
Interlibrary Loan. Licensee may fulfill requests from other institutions, a practice commonly called Interlibrary Loan. Licensee agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC Section 108, “Limitations on exclusive rights: Reproduction by libraries and archives”) and clause 3 of the Guidelines for the Proviso of Subsection 108(g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works.
3. To the extent permitted by applicable copyright law and not further limited or prohibited by this Agreement, User may make copies of Authorized Printouts and distribute Authorized Printouts and copies.
4. A User may use the Online Services solely for research purposes directly connected with the educational activities of his or her school. The Online Services may be used for class preparation, for student’s general research in connection with School classes, clinics or independent study courses, or for any other educational exercise directly connected with the School. Use of or assisting another in the use of the Online Services to perform research for any purpose which is outside the scope of the education activities of the School, whether or not remuneration to any party is involved, is unauthorized use. Unauthorized use breaches the agreement which the School has with [Licensor] and, if detected by [Licensor], will be reported to the School. Disciplinary action may be taken against the offender by the School and the offender’s [Usage rights] will be revoked.
Commentary: It is important that the agreement identify with specificity the uses that will be made by authorized users of the licensed materials. This example includes many common uses of digital information.Licensors often want to limit the copying of licensed materials by library licensees and their patrons. When considering licensor’s desired restrictions, licensees should keep in mind that the fair use provisions of the United States Copyright Act can be modified by a fairly negotiated contract. If a license agreement expressly acknowledges fair use or is silent as to how licensed materials may or may not be copied, fair use will apply, but if the parties agree to limitations on copying that are more restrictive than would otherwise be permitted under the Copyright Act, the licensee cannot later claim broader rights under the law.While library patrons, who generally are not parties to a licensing agreement, may have rights under the Copyright Laws that can not be limited by an agreement between a library and a licensor, licensors may nevertheless attempt to limit patron’s rights indirectly by holding the library responsible for the actions of their patrons. For example, the agreement might forbid anyone–including library patrons–from making a digital copy of licensed materials, and then state that a breach of this clause by a library patron will be considered a breach by the library. Thus, even though the restriction on copying might not be enforceable directly against the patron personally (because he is not a party to the agreement and his copying may be permissible under the fair use provisions of the Copyright Law), the fear of liability under the agreement nevertheless might cause the library to forbid the patron from copying materials. Library licensees should be particularly careful that the licensing agreement does not impose liability on the licensee for actions by the library patrons, and should not agree to provisions that might adversely affect the fair use rights of their patrons.
The first paragraph of Example 2 is specifically designed to ensure that the licensee and its patrons are entitled to use licensed materials in ways that are consistent with the fair use provisions of the United States and International Law.
Example3, however, is, literally, a red flag. It tells the licensee to look elsewhere in the agreement to find another clause or clauses that may whittle away at the right that appears to be acknowledged here. The “other restriction” may well be reasonable and restrict activity that no one considers fair use, but the licensee must check carefully to be sure.
Example 2 also addresses the difficult issue of interlibrary lending of digital materials. As is often the case, licensors often demand the flat prohibition of all interlibrary lending of digital materials.
For print works, interlibrary lending is a routine, widely accepted practice among libraries in the United States. Indeed, the federal Copyright Act expressly permits interlibrary lending in Section 108. But interlibrary lending of print works is within the bounds of Copyright Law only so long as it does not substitute for a subscription to or sale of a work. Publishers have been relatively satisfied that adherence to the CONTU Guidelines, coupled with the difficulty and cost of photocopying and mailing or faxing whole works insures compliance with this restriction.
In the digital environment, copyright owners are not so confident because entire digital works can be cheaply and easily replicated. As a result, licensors are concerned that interlibrary loans of digital materials will result in lost sales. They are further concerned that where a licensor has no contractual relationship with the receiving library, the licensor has less control over the making of more copies of its materials.
Libraries have been adhering to the law for decades. Most librarians believe that copyright owners’ fears are unfounded and do not create a reasonable basis for discontinuing practices that are expressly permitted by law and are necessary, even in the digital environment.