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Copyright and contracts
UCITA is a proposed uniform state law to govern contracts. What relationship does UCITA have with libraries and copyright law?
The interaction is subtle, but it lies at the heart of concerns about UCITA in the library community. These interactions will be explored in a bit more detail throughout this tutorial, but the fundamental issue stems from the differences between contract and copyright law.
What we call "copyright law" is a federal statute-to be technical, Chapters 1-8 and 10-12 of Title 17 of the United States Code. Copyright law stems from a constitutional directive to Congress "To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries" (Article 1, Section 8, Paragraph 8).
Copyright law as we know it today is based on a major rewrite that was signed into law in 1976 and that has been amended several times since. The most recent significant amendment was the Digital Millennium Copyright Act of 1998 (DMCA). A few smaller amendments have been added more recently.
Copyright law assigns certain rights to creators of works but at the same time identifies several exceptions and limitations on those rights. For example, Section 106 of the Copyright Act gives a creator, among other rights, the right to "distribute" a work. However, Section 109 establishes an important limitation on the distribution right by allowing the purchaser of a copy of a copyrighted work to sell, loan, or otherwise redistribute that copy. This so-called "First Sale" limitation is crucial for libraries, since it allows them to loan-without authorization from the copyright holder-books that they purchase. Fair use, archival rights, and limitations on how long the copyright lasts are other types of limitations on the copyright holder's rights.
Contract law, on the other hand, governs private agreements between individuals. With some exceptions, contracts are negotiated and enforced under state law. Here's the rub. Under contract law, people by and large are free to give away rights and to agree not to do things that might otherwise be perfectly legal for them to do. This means that rights and limitations in federal copyright law are negotiable contract terms under contract law-just like the amount of money to be paid and other obligations of the parties who contract with each other.
Authors, for example, usually assign rights to reproduce and distribute a work to the publisher with which they contract to handle the work. Likewise, users may agree to forgo first sale or fair use when they sign onto a license that lets them access and use a work. (They may give up other important rights, too, as we will see in later issues of this tutorial.)
Notice we use the term "agreement" in the previous paragraph. Generally contracts are considered to be negotiated and to reflect what lawyers call a "meeting of the minds." However, there are types of contracts that seem to stretch our notions of negotiation and agreement, and these are among the types covered by UCITA. These contracts are "take it or leave it" contracts that are executed by some action such as breaking a seal on a package or clicking a mouse on a computer screen "button." We have all seen these "shrinkwrap" and "click-on" contracts, most often when starting the installation of a program or database that has been purchased. Are these contracts enforceable? Can the vendor sue you for violating terms of the contract?
Courts have taken a mixed view of the enforceability of these types of agreements. Under traditional contract law, so-called "contracts of adhesion" do not necessarily represent a true negotiation and agreement, because the buyer did not really have a choice or was not in a position to understand the terms. Thus, a court of law may not always have agreed with a vendor who sued to enforce such a contract. Nevertheless, with the growing use of these "click-on" and "shrinkwrap" licenses, the courts are finding them more acceptable.
The bottom line is:
If a library purchases a copy of a work, copyright law defines what can and cannot be done with that copy.
If a library negotiates a contract or license with an information provider, they together determine the proper (and improper) use of the product and they spell it out in the contract.
If a library "purchases" a digital work-on-line or in tangible form such as CD-that contains a "click-on" or "shrinkwrap" license, the state of the law is confusing and contradictory. It is unclear whether a vendor could force the library (the "buyer") to abide by terms that are contrary to what the library could do under the copyright law in the absence of such an "agreement."
It is that anomaly in state contract law that UCITA is in theory intended to address. It is the fundamental take-it- or-leave it nature of these contracts, coupled with the wide range of egregious, anti-user terms (including elimination of fair use and other user protections under copyright law) that UCITA would enable and that make UCITA so troublesome to libraries.
In our next message, we will briefly explore in more detail the current state of the law regarding shrinkwrap licenses.
Additional Information:
The Copyright Law is available in a small printed volume from the Superintendent of Documents, and is in PDF for Copyright Office's web site: (www.loc.gov/copyright/title17)
A good explication of copyright law for the librarian is: Kenneth D. Crews; Copyright Essentials for Librarians and Educators, ALA Editions, Chicago, 2000
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