r or having a computer read an e-Book out loud using text-to-speech software. The latter is particularly important for visually impaired individuals.
These judicial interpretations of the DMCA indicate that in a conflict between new technological protection measures for copyright material and new uses enabled by new technology, it is the new uses which will lose out, even to the point that those who create devices with dual-uses (both ‘fair’ and infringing) may find themselves the subject of a criminal prosecution.
Another example of the disadvantages, or even dangers, of technological protection measures overriding exceptions appears in the EU Copyright Directive, Article 6.4. This allows the governments of EU Member States to intervene, in the absence of voluntary agreements between users and rights owners, to enable a beneficiary of an exception to benefit, but it is effectively negated, as the Directive does not allow intervention if a contract exists. As there is likely to be massive online contracting on the Internet with most terms and conditions being imposed and not negotiated, the value of governments intervening to enable exceptions has the practical effect of being limited to the offline environment. In any case, such intervention takes up valuable time and effort and so is likely to be little used by consumers.
The emerging licensing environment
In addition to intellectual property laws and the increasing use of digital rights management technology, contractual licensing also shapes the digital environment and is being used to limit user rights. ‘Unlike paper materials, digital information generally is not purchased by consumers or the library; rather it is licensed by the library from information providers. A license usually takes the form of a written contract or agreement between the library and the owner of the rights to distribute digital information.’
Licenses for libraries frequently take one of three forms: ‘standard-form’ paper licenses,‘shrink-wrap or ‘click-through’ licenses. In most cases 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