Contractual undermining of rights to education, research and culture: A prime example of digital unfairness

2/3/2023

A key feature of the shift from physical to digital materials, as experienced by both consumers and educational institutions, has been a growing dependence on contracts rather than the law to define what can be done with in-copyright works.

As one example, this means that libraries – and so students, researchers etc – have to rely on their own negotiating power rather than legislation to ensure that they can enjoy both access and possibilities to use in-copyright materials.

This is too often not an equal fight, with many contracts simply not negotiable, or libraries (especially when not working in consortia) often very much the smaller player, with less legal expertise to hand. There is also frequently an inbuilt disequilibrium as the university or school has no choice but to buy the titles on offer. In other words, there is really no freedom of contract.

This raises the question of fairness, both for the institution itself, and for the people who rely on it to pursue their studies, innovate, or simply their right to culture.

Indeed, as underlined in a set of studies published by the European Commission last year, it is vital to protect the functions of libraries in order to make a reality of their users’ fundamental rights, such as to education and research.

However, while there are protections when it comes to some types of contract, for example those offered to individuals (under consumer law), or even those between businesses (under competition law), education and research institutions fall outside of the scope of either.

This is not an ideal situation.

As a result, Knowledge Rights 21 has made a submission to the recent European Commission consultation on the state of legislation around digital contracts, highlighting the need to find a solution.

In this, we highlight that there is a precedent for protecting libraries’ activities. This comes in the Directive on Copyright in the Digital Single Market, which made clear that preservation and (some) text-and-data-mining activities can take place under exceptions to copyright, regardless of what contracts say.

Nonetheless, this remains narrow, compared to the sort of broader protection against the override of exceptions seen already in countries such as Ireland, the UK and Portugal.

It is time to recognise that contract terms that undermine library users’ rights to education, research and culture by cancelling out copyright exceptions and limitations for libraries are unfair, and should be unenforceable.

Access the accompanying document to our submission here.