 there is no opportunity
to actually negotiate the terms of these licenses, and even if there were, the relative bargaining power between the purchaser and the manufacturer is grossly uneven. Shrink-wrap licenses are so-called because they are contained inside shrink-wrapped plastic around a physical article embodying intellectual property (such as a CD-ROM). ‘Click-though’ licenses are typically used with respect to copyright material that is acquired online; before the user can access any part of the copyright material, they must first signal their agreement with a licence agreement (usually by clicking the ‘I agree’ button). Standard-form agreements may or may not be negotiable, however, shrink-wrap or click-through licenses never are.
There are many reasons why a vendor may wish to use such a license agreement and IFLA is not opposed to the use of such agreements provided both parties to the agreement are equal, i.e., one party has something to sell, the other has the purchasing power to buy, and both parties negotiate terms and conditions. However, there is a growing problem that such agreements are being used as ‘unilateral legislation’; that is, license agreements frequently override copyright exceptions and set a level of usage that is more restrictive than the law allows. Licenses can involve a wide range of terms and conditions, but, unlike copyright law, licensors are not statutorily obliged to consider the public interest in accessing information when setting such terms and conditions. As most digital information is distributed by license, public policy considerations such as fair use, fair dealing or exceptions to the author’s rights are likely to become null and void. It is therefore essential that limitations and exceptions are carefully considered in the digital realm to protect access to information..
Some examples of the types of restrictions that license agreements often impose include:
- restrictions on users printing or downloading or emailing copies of (parts of) the material;
- restrictions on the number, location, and organizational affiliation of users;
- restrictions on libraries performing inter-library loan/document supply;
- restrictions on libraries copying the work for preservation purposes;
- restrictions on the use of a work beyond a certain date;
- restrictions on libraries networking the work across the premises of the library;
- restrictions on lending or otherwise disposing of a digital work.
- restrictions on the right to quote, analyze and even to index a work
The combination of protected technological measures and licenses can lead to an absolutely unlimited protection of the interests of the rights owners, who benefit from several cumulative layers of protection: copyright protection, technological protection, legal protection of the technological measures, and contract law.
The IFLA Position
“Digital technology enables [publishers] to track and charge for every instance of electronic access, even for browsing… The resulting market power then allows the publisher to impose monopoly prices and potentially oppressive terms on users, including libraries, academies, institutes and research centers, and to ignore the social consequences that ensue from the inability of research organizations to pay for such access.”
Most copying of print-based material in libraries is for educational, research or private study purposes or for preservation. The reasons usually given for copying are because users are unable to read the material in the library (material is in demand or reference only) or because the user wishes to read it at a more convenient time (time shifting). Despite rights owner concerns about loss of sales there is no evidence that copying reasonable amounts from copyright protected works displaces sales. Those who copy would not necessarily buy a work if prevented from copying it. There is no reason to believe that this pattern will not also be true of copying from digital works.
IFLA believes, therefore, that not only must traditional copyright exceptions be preserved both in the