August 29, 2011
Time for AALL to "Interfere" in Licensing: An Approach for Petitioning State Governments
Initially I thought the title of this post would be "Time for a Model Act on Fair Use Preservation in Licensing of Electronic Content?" Certainly UNC Law's David Robert Hansen has provided a working draft for consideration by the NCCUSL in his A State Law Approach to Preserving Fair Use in Academic Libraries [SSRN]. But hold on for a minute. Hansen's work also provides a framework for consumer advocacy that echoes in one of our association concerns, namely "fair use." It also provides an illustration of what a national AALL Library Consumer Advocacy Caucus could do by serving as a clearinghouse of information individual institutional members could if they so choose use to petition their state governments for legislating a necessary corrective to model licensing agreements. In saying so, I am merely expressing my own opinion, not that of the Library Consumer Advocacy Caucus which is still trying to get an official okey dokey from AALL officialdom.
In A State Law Approach to Preserving Fair Use in Academic Libraries, Hanson writes
Contracts can do funny things to the balance of rights granted by Congress in the Copyright Act. For public institutions that spend large amounts of money on copyrighted content, contractual restrictions on users‘ rights are especially problematic given the needs of academic library patrons. In recent years, academic libraries have experiences a dramatic shift in acquisitions practice, from purchasing physical copies of works to licensing access to those works. With this shift toward licensing, academic library users‘ rights under federal copyright law have been diminished. In particular, these restrictions have narrowed the scope of fair use, a right whose free exercise is important to academic freedom and equity across institutions of higher education. These contractual limitations alter the delicate balance‖ of author and user rights, and have garnered significant criticism in the literature. Thus far, proposals to restore the balance have not been effective because they are either too ambitious (as with federal preemption) or too weak (as with model licenses). This paper proposes a solution that falls between those two extremes, and which may be useful to rebalance the rights of content owners and users with respect to other academic uses as well.
Hanson's hypothetical Educational Fair Use Preservation Act would render any licensing provision between rights holders and an IHE that modifies or eliminates fair use for users void. While it addresses the issue in the context of public academic libraries, Hansen observes:
Academic library users are not, however, the only group of users that are negatively impacted by licensing restrictions on rights like fair use. As the digital distribution of copyrighted works becomes more common, consumers are presented with the same problems as those in academia. Because contracts—creatures of state law—are what enable these problems, serious thought should be given by states courts and legislatures to modifying state contract law, either for individual classes of users (as this paper proposes), or for consumers in general.
Amen to that. [JH]