RLI 275 23 White Paper: Trends in Licensing ( C O N T I N U E D ) JUNE 2011 RESEARCH LIBRARY ISSUES: A QUARTERLY REPORT FROM ARL, CNI, AND SPARC Appendix A: Legal Licensing Issues When a license agreement is silent as to the permissibility of ILL and there have been no informal discussions of the issue between the parties, institutions should assume standard ILL practice is allowed and fulfill requests accordingly. All else being equal, reasonable licensors should assume that the licensee intends to engage in whatever activities are customary and permitted by law unless the license specifies that those activities are forbidden. As most licenses that address the issue do allow ILL, and ILL (including to non-US partners) is a long-established practice, the burden should be on the licensor to specify that it wants to deviate from this default practice. For the same reason there is no need to deliver copies of “silent license” materials in inferior formats such as scanning or faxing printouts rather than electronic delivery of files in the same format that is available to licensee’s authorized users. The default expectation should be delivery in the most useful and efficient format allowed by law. The inclusion of a generic savings clause, such as “All rights not specifically granted to Licensee are expressly reserved,” has no effect on a library’s rights under fair use and Section 108, and hence does not bar lending under ILL arrangements. A publisher’s rights are expressly limited by the exceptions in the law, including Sections 107 and 108, so they have no right to forbid activities that Sections 107 and 108 allow. It is often said that “a license trumps fair use,” but this isn’t entirely accurate. Conflicting provisions in a license do override default rights under fair use and other exceptions, but the mere fact that a license exists does not alter the default legal rules that govern the use of copyrighted materials. Libraries do not need a publisher’s permission to engage in these activities, so a publisher’s declaration that its grant of permission is limited is irrelevant to activities covered by statutory exceptions. Only an affirmative promise by the library that it will not engage in activities other than those specifically discussed in the license would be sufficient to bar a library from engaging in ILL. Such a provision should raise red flags for libraries, which should resist this kind of erosion of their legal rights. In addition, judges construe ambiguous provisions against the drafter of the agreement (almost always the publisher), especially in one-sided negotiations, which are typical in this context. So a generic savings clause will not be construed broadly to limit the rights of libraries where, as here, there is a better interpretation that is friendly to libraries. Some license agreements appear to include language to the effect that articles in the database cannot be downloaded, reproduced, transmitted, and so on, “except as permitted by [national/international/applicable] law.” This language is likely meant to give licensees permission (or, consistent with the discussion above, to be clear that the library is not waiving its rights) to take advantage of exceptions and limitations such as fair use and Section 108. However, an attorney would have to see the full text of a license agreement to be sure of any provision’s meaning. For example, language in the JSTOR license allowing ILL if in compliance with “international copyright laws, guidelines, or conventions” appears designed to give licensees rights (or, again, to make clear that licensees are not waiving rights) to do whatever ILL practices are legal or customary in licensee’s country or community. In short, this kind of language is likely meant to preserve libraries’ default rights, not take them away, and should be interpreted to allow ILL in compliance with US law. —Brandon Butler, Director of Public Policy Initiatives, ARL
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