When Copyright and Contracts Collide: Advocacy for Library and User Rights

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AI-generated image via ChatGPT

In the ever-evolving landscape of digital access to scholarly research, libraries face new challenges as they navigate the intersection of copyright law and contractual agreements. Academic institutions increasingly rely on digital content, and understanding how copyright exceptions and contract law interact is crucial for protecting the rights of libraries and our users.

Tim Vollmer (Scholarly Communication & Copyright Librarian, UC Berkeley), Sara Benson (Copyright Librarian and Associate Professor, University of Illinois-Urbana Champaign), Jonathan Band (copyright attorney and counsel to the Library Copyright Alliance), and Jim Neal (University Librarian Emeritus, Columbia University) presented on these issues at the 2024 American Library Association Annual Conference in San Diego. Our panel was titled When Copyright and Contracts Collide: Advocacy for Library and User Rights.

The Role of Copyright Exceptions

Sara set the stage for our discussion by describing the importance of limitations and exceptions to copyright that empower libraries, research, and teaching. For example, Section 108 of the U.S. Copyright Act allows libraries and archives to make limited copies of copyrighted materials for preservation, replacement, fulfilling interlibrary loan requests, and more. Fair use—Section 107 of the Act—permits limited use of copyrighted works without having to seek the copyright holder’s permission when the use is for purposes such as teaching, research, scholarship, reporting, criticism, or parody. Faculty, students, and academic authors leverage fair use when they incorporate copyrighted materials for teaching, research, and publishing. And the fair use exception has played an increasingly important role in facilitating new types of scholarly research, including text and data mining.

The Threat of Contractual Override

Despite these protections, contractual agreements can sometimes override copyright exceptions. Vendor licensing terms may include clauses that restrict activities such as text and data mining. And even though fair use is a statutory right (meaning it’s in the law) in the U.S., and even though there have been court cases that confirm that activities such as text data mining falls under fair use, there is no protection against the practice where private parties such as academic publishers “contract around” fair use for actions that already are lawful.

As a result, academic libraries are forced to negotiate and often pay significant sums each year to try to preserve fair use rights for campus scholars through the database and electronic content license agreements that they sign.

Jonathan discussed alternative international approaches to the problem of contractual override. The European Union, for example, has implemented directives that nullify contract terms which override specific copyright exceptions. Countries like Australia, New Zealand, and Norway have also adopted similar measures. However, the United States and Canada lack comprehensive contract override prevention laws, making it challenging to protect copyright exceptions at the national level.

Advocating for Fair Contracts in Library Licensing

Tim discussed how academic libraries are demanding license agreements that preserve fair use rights. But at the same time, libraries are already starting to see contract amendments put forth by scholarly publishers that attempt to impose outright bans on any use of artificial intelligence (AI) tools for the content we’re licensing from them. The challenge is that we know that researchers are using library-licensed materials for many AI uses in the context of nonprofit scholarship and research, and these uses should be a fair use, just as it’s fair use for researchers to conduct text data mining on licensed resources.

Library workers can smartly negotiate to protect the rights of instructors, students, and other academic community members to use library-licensed resources in the ways they need to conduct their teaching and research while simultaneously taking into consideration the concerns of publishers.

Moving Forward: A Coordinated Approach

To address the issue of contractual override, Jim suggested several approaches, including educating library stakeholders such as administrators and faculty, building constructive relationships with publishers, monitoring international developments, and pursuing legislative change to protect copyright exceptions.

The University of California Libraries are already collaborating on this and related issues with our colleagues. After outreach to several library and faculty committees, the UC’s Academic Senate sent a letter to UC President Michael Drake to advocate that the UC Libraries need to be able to negotiate to preserve fair use rights when licensing electronic resources—including the rights to conduct computational research and utilize AI tools in academic studies and scholarship. President Drake and UC System Provost and Executive Vice President for Academic Affairs Katherine S. Newman affirmed this commitment.

Please reach out to schol-comm@berkeley.edu with any questions. For more information, please see the links below.


Wrapping up our NEH-funded project to help text and data mining researchers navigate cross-border legal and ethical issues

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Image via rawpixel, public domain

In August 2022, the UC Berkeley Library and Internet Archive were awarded a grant from the National Endowment for the Humanities (NEH) to study legal and ethical issues in cross-border text and data mining (TDM).

The project, entitled Legal Literacies for Text Data Mining – Cross-Border (“LLTDM-X”), supported research and analysis to address law and policy issues faced by U.S. digital humanities practitioners whose text data mining research and practice intersects with foreign-held or -licensed content, or involves international research collaborations.

LLTDM-X is now complete, resulting in the publication of an instructive case study for researchers and white paper. Both resources are explained in greater detail below.

Project Origins

LLTDM-X built upon the previous NEH-sponsored institute, Building Legal Literacies for Text Data Mining. That institute provided training, guidance, and strategies to digital humanities TDM researchers on navigating legal literacies for text data mining (including copyright, contracts, privacy, and ethics) within a U.S. context.

A common challenge highlighted during the institute was the fact that TDM practitioners encounter expanding and increasingly complex cross-border legal problems. These include situations in which: (i) the materials they want to mine are housed in a foreign jurisdiction, or are otherwise subject to foreign database licensing or laws; (ii) the human subjects they are studying or who created the underlying content reside in another country; or, (iii) the colleagues with whom they are collaborating reside abroad, yielding uncertainty about which country’s laws, agreements, and policies apply.

Project design

We designed LLTDM-X to identify and better understand the cross-border issues that digital humanities TDM practitioners face, with the aim of using these issues to inform prospective research and education. Secondarily, we hoped that LLTDM-X would also suggest preliminary guidance to include in future educational materials. In early 2023, we hosted a series of three online round tables with U.S.-based cross-border TDM practitioners and law and ethics experts from six countries. 

The round table conversations were structured to illustrate the empirical issues that researchers face, and also for the practitioners to benefit from preliminary advice on legal and ethical challenges. Upon the completion of the round tables, the LLTDM-X project team created a hypothetical case study that (i) reflects the observed cross-border LLTDM issues and (ii) contains preliminary analysis to facilitate the development of future instructional materials.

We also charged the experts with providing responsive and tailored written feedback to the practitioners about how they might address specific cross-border issues relevant to each of their projects.

Guidance & Analysis

Case Study

Extrapolating from the issues analyzed in the round tables, the practitioners’ statements, and the experts’ written analyses, the Project Team developed a hypothetical case study reflective of “typical” cross-border LLTDM issues that U.S.-based practitioners encounter. The case study provides basic guidance to support U.S. researchers in navigating cross-border TDM issues, while also highlighting questions that would benefit from further research. 

The case study examines cross-border copyright, contracts, and privacy & ethics variables across two distinct paradigms: first, a situation where U.S.-based researchers perform all TDM acts in the U.S., and second, a situation where U.S.-based researchers engage with collaborators abroad, or otherwise perform TDM acts in both U.S. and abroad.

White Paper

The LLTDM-X white paper provides a comprehensive description of the project, including origins and goals, contributors, activities, and outcomes. Of particular note are several project takeaways and recommendations, which we hope will help inform future research and action to support cross-border text data mining. Our project takeaways touched on seven key themes: 

  1. Uncertainty about cross-border LLTDM issues indeed hinders U.S. TDM researchers, confirming the need for education about cross-border legal issues; 
  2. The expansion of education regarding U.S. LLTDM literacies remains essential, and should continue in parallel to cross-border education; 
  3. Disparities in national copyright, contracts, and privacy laws may incentivize TDM researcher “forum shopping” and exacerbate research bias;
  4. License agreements (and the concept of “contractual override”) often dominate the overall analysis of cross-border TDM permissibility;
  5. Emerging lawsuits about generative artificial intelligence may impact future understanding of fair use and other research exceptions; 
  6. Research is needed into issues of foreign jurisdiction, likelihood of lawsuits in foreign countries, and likelihood of enforcement of foreign judgments in the U.S. However, the overall “risk” of proceeding with cross-border TDM research may remain difficult to quantify; and
  7. Institutional review boards (IRBs) have an opportunity to explore a new role or build partnerships to support researchers engaged in cross-border TDM.

Gratitude & Next Steps

Thank you to the practitioners, experts, project team, and generous funding of the National Endowment for the Humanities for making this project a success. 

We aim to broadly share our project outputs to continue helping U.S.-based TDM researchers navigate cross-border LLTDM hurdles. We will continue to speak publicly to educate researchers and the TDM community regarding project takeaways, and to advocate for legal and ethical experts to undertake the essential research questions and begin developing much-needed educational materials. And, we will continue to encourage the integration of LLTDM literacies into digital humanities curricula, to facilitate both domestic and cross-border TDM research.

[Note: this content is cross-posted on the LLTDM blog.]


Upcoming Workshop: Can I Mine That? Should I Mine That? A Clinic for Copyright, Ethics & More in TDM Research

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Workshop Date/Time: Wednesday, March 8, 2023, 11:00am–12:30pm

Register to receive Zoom link

If you are working on a computational text analysis project and have wondered how to legally acquire, use, and publish text and data, this workshop is for you! We will teach you 5 legal literacies (copyright, contracts, privacy, ethics, and special use cases) that will empower you to make well-informed decisions about compiling, using, and sharing your corpus. By the end of this workshop, and with a useful checklist in hand, you will be able to confidently design lawful text analysis projects or be well positioned to help others design such projects. Consider taking alongside Copyright and Fair Use for Digital Projects.

Please sign up today and join us online on March 8.