A State Law Approach to Preserving Fair Use in Academic Libraries


fair use, copyright law, free speech


Every year academic libraries spend millions of dollars to provide their users access to copyrighted works. Much of that money goes not toward purchasing physical copies of books or journals, but toward licensing electronic content from publishers. In those electronic license agreements, the default rules for how users interact with copyrighted content is often altered, and academic library users are deprived of basic rights — especially rights such as fair use — which are granted under federal copyright law. The literature is flush with discussion of the misuse of private contracts to alter the rights granted by Congress in copyright’s statutory scheme. As a result, there have been many proposals to maintain copyright’s balance between content owners’ and users’ rights through either the adoption of model licenses or changes to federal law. Because those proposals have thus far failed to slow private contracts’ fervent erosion of users’ rights, this paper proposes a modest state-law solution to the problem for one class of users that is especially hurt by this change: academic library users. This paper envisions a state law that would render void any contract provision between a rights holder and a state institution that modifies or eliminates fair use for users. This approach is especially valuable in preserving fair use for public academic library users — a class of users for whom fair use is particularly important given their interest in free speech, academic freedom, and the creation of new, innovative uses for creative works. Given the growth in general of licensing (an area largely governed by state law) this proposal is also a useful starting place for discussion about the use of state law to preserve users’ rights in copyrighted works.

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