Can Fair Dealing/Use Rights be Signed Away?

I’ve started negotiating contracts/licenses for journals subscriptions and ebooks with vendors over the last couple years and it’s been pretty fascinating in a very frustrating way. Vendors really do try and stifle Fair Dealing/Use whenever they can. They place restrictive limits how individual articles can be shared, on text and data mining capabilities, on the ability to download sections from eBooks, and restrictions when it comes to inter-library loan  (ILL) provisions (Some vendors still limit ILL capabilities so that article requests from other libraries can only be fulfilled via fax or only for libraries that are located in your country. So much for a digital, interconnected world).

Worst part about these restrictions on Fair Dealing/Use (FD) is that that vendors squeeze them in via legal jargon wherever they can in the license. Some larger academic libraries have lawyers who can navigate this jargon, but most research libraries don’t have this option. The Library Community has attempted to solve this problem by designing model licences that other libraries can use. e.g. LibLicense,  CRKN.  These licenses have jargon that allows for expansive FD but, more importantly, they often have a statement that makes it explicitly clear that nothing in the license trumps the FD rights given by a countries’ Copyright Act.

This means that even if library overlooked a restrictive FD provision in their license, they could really on that explicit statement to overthrow it. For example, this statement from Section 3.3 of the LibLicense model license:

No Diminution of Rights. Nothing in this Agreement, including but not limited to Section 3.2, shall be interpreted to diminish the rights and privileges of the Licensee or Authorized Users with respect to any of the Licensed Materials, including exceptions or limitations to the exclusive rights of copyright owners, such as fair use, under Section 107 of the U.S. Copyright Act

Getting vendors to add such a statement (i.e. asking them just to follow the Copyright Act) actually isn’t that easy. Problem is, the vendors often hold all the cards in a negotiation. As a library we need access to that particular journal or eBook they offer and there is no where else we can get it. It’s an Oligopoly (Hopefully Open Access can change this).

Wouldn’t it be nice if FD rights illustrated in Copyright Acts were inalienable rights, that is, rights that can’t be signed away? If whenever we signed a contract or license for an information resource, we could rest easy that these rights are protected, without us needing to negotiate them into the contract?

I mean, what’s the point of having FD anyway if it can removed so easily by a contract? It’s not a really a right at all then, it’s just a privilege that a vendor can decide whether they want to grant or not. Why is FD illustrated in Copyright Acts if this is the case? If FD is trumped by contracts then it is vendors that decide when to grant it. Not governments. Not us.

This doesn’t make any sense. To me, if Fair Dealing is in a Copyright Act it must be an inalienable right. Look at all the FD court rulings! Every time a FD case goes to court the vendor claims the user broke their contract. That they used material in a way they weren’t allowed to. Every time a user claiming FD wins a court case it shows that FD can trump contracts. Whenever a court rules against the user, they always rule that the their use did not count as FD. Not that they signed away their FD rights under the contract.

There is a great paper from Lisa Di Valentino on this topic: Conflict between Contract Law and Copyright Law in Canada: Do Licence Agreements Trump Users’ Rights?

Can Fair Dealing/Use Rights be signed away? No. I think it makes sense that in certain cases FD rights can be overthrown by more important rights (i.e. Privacy) or sensitive information (i.e. Trade Secrets), but like human rights these are complicated matters that are best settled by the courts. What’s important here is FD rights are actual user rights. Vendors can’t steal those from you.

It be nice if the fact that FD rights are inalienable was clearly illustrated within Copyright Acts. To some of you reading, making such a “drastic” change to the Copyright Act may sound impossible, but there is precedent. The U.K. has had no contract override for libraries and archives since 2014. This key part from their Copyright Law:

(4B) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.

So it is possible! Canada will be soon starting a copyright act review. Let’s hope a FD Contract Override Statement gets taken into consideration.

I was at the great Access Library Technology Conference last week and ended up talking to a librarian who has done library licensing for years. They made a point about this FD vs Contract debate that is still resonating with me: How is it allowed that Libraries can sign away the Fair Dealing Rights of their users? A right is a right. When a user signs away a right they should know and be aware of what they are signing. How many users would agree to fair dealing restrictions if they knew what they were really giving up? How can a library mass sign away user rights for a user population that isn’t really consenting? If a user went to court over a vendor suing them for making use of something under FD but breaking contract, it seems very unlikely that a vendor’s argument that “your library signed your fair dealing rights away” would hold up.

It’s all very frustrating. This is why we need to take an expansive view of FD, but we also shouldn’t live in fear of being sued because of it. FD shouldn’t only be for those who have the money to prove it in court. We need an explicit FD override statement in our Copyright Act.

We are not done here though! Unfortunately, putting such a statement in the Copyright Act wouldn’t solve all of our FD problems. In the digital world, FD is often stopped not just by contract law, but by Technical Protection Measurements (TPM) or Digital Rights Management (DRM). We can have FD rights affirmed in our contract, but a vendor can still stop us from using these rights by making material only available using technology that limits these rights. This is called the Fair Dealing Gap by Michael Geist. I’ve talked about it before.

Essentially the Fair Dealing Gap is that digital items are treated differently from non-digital items. Digital Items can stop/lock a user from using their FD rights and it is illegal to try and navigate around these locks. There are no such locks for non-digital material, you can make use of Fair Dealing whenever you want. Digital Items are treated differently than non-digital items when it comes to FD, thus the Fair Dealing Gap.

Now, it seems pretty clear that this is also not ok. Vendors shouldn’t legally be allowed to restrict FD by using TPMs. If you break a digital lock to make FD use of the material, this should not be illegal. So we need to fix this too. FD use should be allowed regardless of contracts and TPMs. If you break/hack through a digital lock to make FD allowed use of material, that should be legal. Vendors should not be allowed to have overly restrictive TPMs in the first place.

So what do we do? Advocate. Support and encourage broad FD interpretations. Organize. A citizen FD rights watch organization could do wonders. Push vendors and publishers. Make them realize how ridiculous it is that they are asking you not to follow the Copyright Act. Write about it. Tweet about it. Let your government know about it.


About Ryan Regier

Doing Library Stuff. Follow me on twitter at: @ryregier
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2 Responses to Can Fair Dealing/Use Rights be Signed Away?

  1. Pingback: Twitter Inter-Library Loan, Article Sharing, and Open Access | A Way of Happening

  2. Pingback: Preliminary Thoughts on Canada’s Copyright Review | A Way of Happening

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