Authorized Use; Specific Use Restrictions
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:
- What uses are expressly permitted?
- What is the rule if the agreement does not specifically deal with a particular use or user?
- Does the agreement provide for all the uses and users that the licensee normally accommodates?
- What is the rule in unforeseen circumstances, such as the identification of a new use or user?
- Does the agreement forbid all uses other than those specifically enumerated in the agreement?
- Does the agreement permit all uses other than those specifically forbidden?
- What are the consequences of an unauthorized use?
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:
- who may have access to licensed materials
- where access may be provided
- the amount of information that may be copied and/or how long copies may be retained
- copying, disassembling or reverse engineering software
- commercial use of licensed materials
- the alteration or modification of licensed materials
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:
- eliminate from an agreement any restrictions that impair their or their patrons’ exercise of fair use
- affirmatively delineate permitted uses
- specifically reference fair use in the agreement or include equivalent language.
- avoid contradictions; all clauses addressing copyright issues–and usage issues in general–should be together so that it is easy to determine what the library’s and its patrons’ rights are.
Authorized Use; Specific Use Restrictions: Example Clauses
|Authorized Uses of Digital Information|
|1. Authorized Users. “Authorized Users” are:Persons Affiliated with Licensee. Full and part time students and employees (including faculty, staff, affiliated researchers and independent contractors) of Licensee and the institution of which it is a part, regardless of the physical location of such persons.Walk-ins. Patrons not affiliated with Licensee who are physically present at Licensee’s site(s) (“walk-ins”).||Commentary: This provision specifically identifies who may have access to digital information and where they may obtain such access.|
|2. Licensee and Authorized Users may make all use of the Licensed Materials as is consistent with the Fair Use Provisions of United States and international law. Nothing in this Agreement is intended to limit in any way whatsoever Licensee’s or any Authorized User’s rights under the Fair Use provisions of United States or international law to use the Licensed Materials.The Licensed Materials may be used for purposes of research, education or other non-commercial use as follows:
Display. Licensee and Authorized Users shall have the right to electronically display the Licensed Materials.
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.
Some Authorized Use provisions set forth a laundry list of permitted uses, and declare all other uses unauthorized. This is not the best approach as it can lead to unintended difficulties. For example, Example 4 could be interpreted as prohibiting the mere browsing of licensed materials–even by an authorized user–if it is not done in connection with a specific educational purpose. If the agreement must have such a list, be sure that its terms are broad enough to include all the uses the library’s patrons are likely to make of the licensed materials.
|Specific Restrictions on Use of Licensed MaterialsLimitations on who may use the licensed materials|
|1. Except as specifically provided elsewhere in this agreement, Licensee shall not knowingly permit anyone other than Authorized Users to use the Licensed Materials.||Commentary: This example prohibits the library licensee from knowingly permitting anyone other than authorized users from using the licensed materials. The inclusion of the word “knowingly” is important—licensees should only be responsible for unauthorized use that they intentionally permit, not for misuse of the materials over which they have no control.|
|Prohibition of commercial use of licensed materials|
|2. Commercial Purposes. Other than as specifically permitted in this Agreement, Licensee may not use the Licensed Materials for commercial purposes, including but not limited to the sale of the Licensed Materials or bulk reproduction or distribution of the Licensed Materials in any form.||Commentary: Most licensing agreements prohibit the licensee or its users from charging a fee for access to copies of licensed materials. While provisions specifically prohibiting the direct resale of licensed materials are not controversial, the agreement should make clear (usually in the Authorized Use section), that charging administrative fees to cover the costs of making permitted copies of the materials is not prohibited.Another issue that is often unclear is whether provisions such as these prohibit internal charge backs or other accounting mechanisms for uses of licensed information between divisions or units of the licensing institution. While such arrangements generally do not fall within the spirit of clauses prohibiting the licensee from charging a fee for use of licensed materials, it is probably wise for the licensee to expressly include permission to undertake such arrangements in the agreement.|
|Limitations on modification of licensed materials|
|3. Modification of Licensed Materials. Licensee shall not modify or create a derivative work of the Licensed Materials without the prior written permission of Licensor.
4. Removal of Copyright Notice. Licensee may not remove, obscure or modify any copyright or other notices included in the Licensed Materials.
5. Licensee and its Authorized users may not modify, adapt, transform, translate, or create any derivative work based on any materials included in Publications, or otherwise use any such materials, in a manner that would infringe the copyright therein. Any copyright notices, other notices or disclaimers included by Publisher in the online form of Publications or any accompanying screen displays may not be removed, obscured or modified in any way.
6. Unless specifically authorized in writing, licensed machine-readable forms may not be combined, duplicated, divided or added to by Licensee. If any licensed machine-readable form is combined, duplicated, divided or added to, such shall be deemed a licensed machine-readable form subject to all terms and conditions contained in this agreement.
|Commentary: Prohibitions on the alteration or modification of licensed materials are generally non-controversial. The intent of such clauses is to prevent a user or licensee from changing the data that makes up the licensed materials. Similarly, clauses that prohibit the licensee from removing copyright notices from the licensed materials are generally acceptable. However, Examples 5 and 6 may sweep too broadly. These could be interpreted as prohibiting use of the information in the licensed materials in scholarly works and publications—uses that are plainly permissible under Fair Use. To avoid any misunderstanding about what is and is not permissible, it might be wise to include a clause specifically permitting scholarly sharing of the licensed materials in the Authorized Use section of the agreement.|