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.