Contract Law and Copyright Exceptions: What’s at stake? Benjamin White Head of Intellectual Property British Library

© What is its role in a world where lawful transactions for purchased digital content isn’t governed by copyright law any more?

UK universities spend over £250 million pa on content - majority licensed databases. (LISU) 2010 UK consumers spent £317 million on music downloads. (BPI) 2011 UK consumers to spend £100 million on e books (Which?) Globally libraries spend $23.8 billion pa on content. (Outsell)

British Library Analysis of 100 Contracts YesNoSilent9 Archiving Fair Dealing5842 Visually Impaired298 Interlibrary Loan14482 Exceptions2575

Digital Preservation “On termination of this Agreement the Institution will destroy and will procure that all Authorised Users destroy all content supplied through the Service stored on any digital information storage media, including but not limited to system servers, hard disks, diskettes and back up tapes.” “On termination of this Agreement, the Licensee agrees to destroy, and will use its reasonable endeavours to procure that all Authorized Users destroy, all Licensed Material stored on any digital information storage media, including, but not limited to, system servers, hard disk, diskettes, and back up tapes.”

Fair Dealing Copying? “You may not copy the Products in any form.” “The Licensee may “ make such temporary local electronic copies by means of caching or mirrored storage of all or part of the Licensed Materials as are necessary solely to ensure efficient use by Library Staff and Patrons.” “Users may browse, copy or print reports, but the download facility will not be available.” But CDPA allows digital copying: §.17 (2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.

Inter- Library Loan “Interlibrary loan therefore is not permitted.” “Licensee and Authorised Users may not distribute information included in the Services to other public libraries.” “The Subscriber may print and deliver Excerpts to fulfil requests as part of the practice commonly known as “interlibrary loan” from non-commercial libraries located within the same country as the Subscriber.” “The Licensee may supply to another library within the same country as the Licensee, for the benefit of an Authorised User of such library, a copy of an individual document being part of the Databases by post, fax or electronic transmission via the Internet or otherwise, for the purposes of research or private study and not for Commercial Use.”

Draft Treaty on Copyright Exceptions and Limitations for Libraries and Archives Article 14 Obligation to Respect Exceptions to Copyright and Related Rights Any contractual provisions that prohibit or restrict the exercise or enjoyment of the exceptions and limitations in copyright adopted by Contracting Parties according to the provisions of this Treaty, shall be null and void.

The interplay of copyright and contract law - the most structural ( fundamental? ) issue faced by users of copyright works?