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INTRODUCTION
Academic, research, public, and school libraries are essential infrastructures for research, education and culture. As such, they are empowered by law – via exceptions or limitations to copyright and neighbouring rights – to use protected materials in various ways serving the public interest, without the explicit need for authorisation by rightsholders. However, in order to acquire access to protected content and databases, knowledge institutions must enter into licensing agreements with publishers and other information providers. These agreements, often in the form of contracts of adhesion, impose contractual arrangements that may restrict or prohibit certain uses of content otherwise permitted by copyright law.
The study of 100 contracts explores the extent of contractual constraints impacting core library missions within a sample of 100 licensing contracts. It is based on qualitative and quantitative evaluation of licensing clauses in agreements between publishers and institutional users in 14 European countries. These clauses are assessed against typical activities necessary for the performance of core library missions. The findings of the research are presented in a tabular overview of the contracts analysed, including excerpts from the relevant contractual clauses to support the assessments made. The table is included as an appendix to this report and is also available online in an interactive live format.
KEY TAKEAWAYS
The conclusions of this study are based on three major groups of observations. Firstly, the study looks at whether or not the contracts studied assert the primacy of contractual terms and conditions over exceptions and limitations to copyright (including fair use and fair dealing provisions) that libraries should enjoy by law. Secondly, it investigates how the contracts restrict essential library activities vis-à-vis statutory exceptions, and the extent of this misalignment between statutory and contractual permissions. Thirdly, the study examines choice of law provisions in contracts, particularly when foreign governing laws are applied, and their potential effect on the enforcement of domestic copyright exceptions.
The conclusions about the extent of contractual override of exceptions to copyright demonstrate, on the one hand, the relevance of a national legal framework that safeguards exceptions and limitations to copyright and neighbouring rights against their circumvention by contractual means. Such safeguards could be implemented by the legislator explicitly attributing an imperative (i.e. non-overridable) character to norms containing copyright exceptions. On the other hand, the study’s conclusions emphasise the importance for libraries, institutions and consortia of seeking legal support and actively engaging in negotiations with publishers in order to improve licensing terms.
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AUTHOR(S)
