There has been a dramatic shift in our personal lives, schools, and workplaces from buying and owning cultural materials like books, music, movies, and television, to licensing (i.e., subscribing to) these materials. Digital materials should be easier to access and use, however in this new environment activities like copying, sharing, and reusing cultural materials are governed by contracts rather than by the Copyright Act and its users’ rights like fair dealing. Additionally, in the digital age we can no longer separate the object (e.g., a book) from its content (the copyright-protected text) – actions such as lending or reselling a book, which in a physical object don’t affect the intellectual property, now require copies to be made and are therefore restricted by both copyright and licence terms.
In higher education, more than 90% of library acquisitions are now licensed digital materials. Students’ textbooks are increasingly digital-only as well. This shift has impacted many aspects of library work, for example making it extremely complex to advise patrons about whether and how a given resource can be copied and used. Content licences also reduce the ability of libraries to fulfil their traditional roles and responsibilities as stewards and providers of information (see Figure 1). Libraries, along with museums and archives, preserve cultural materials and, more importantly, democratize access by allowing all members of society to “educate themselves and participate in public life.”
Figure 1: Licence terms provided in a Canadian university library catalogue entry for a scholarly database. Note that teaching and research uses, interlibrary loans, and text and data mining may be permitted by exceptions in the Copyright Act
It has been posited that contract terms may not be able to override users’ rights exceptions in the Copyright Act. However, it is not clear in the Copyright Act and has not been directly addressed in case law whether a user of licensed material can take advantage of user rights such as fair dealing if doing so contravenes the terms of the contract. There is a similar lack of clarity in other countries as well. Therefore, many users – and institutions – avoid exercising these rights in order to reduce risk. Libraries and other institutions are left to attempt to negotiate with every publisher and vendor to add clauses to licences that ensure that users’ rights, as codified in the Copyright Act, are explicitly permitted. This case-by-case approach puts libraries at a disadvantage compared to large publishers, and there are often no alternative sources for material if agreement can’t be reached. It also adds to the number of terms that can differ between licences, increasing the complexity of providing access and advising patrons on how they can use library materials.
In addition to licence terms, content providers use technological protection measures (TPMs) to further control access to and use of cultural materials. TPMs include restrictions on access (e.g., passwords, paywalls, expiries with automatic deletion) and restrictions on use (e.g., download blocking and printing page limits). So for example, where fair dealing might allow a user to copy an excerpt for research purposes, TPMs can prevent them from doing so. TPMs typically apply to all users equally and cannot allow for exceptions based on the Copyright Act; they often also restrict access to content that is in the public domain. Circumventing a TPM is explicitly prohibited in Copyright Act section 41.1 except in certain specific and extremely limited circumstances. This further limits the ability of libraries to provide access to materials and preserve their collections.
The users’ rights under copyright that have emerged in the past quarter-century, reinforced both in legislation and in court decisions, were intended to serve the balance of copyright between owners and users. These users’ rights and this balance have been largely negated by the contracts that now govern access to the vast majority of cultural, creative, research, and educational materials. Combined with the 2022 extension of the copyright term and its resulting public domain freeze, as well as the potential for AI panic to cause creators to be less willing to make their work available, the balance of copyright is quickly shifting away from users.
Despite the aims of balance as well as technological neutrality, the Copyright Act is not equipped to combat the contract terms that now govern our uses of cultural materials in our personal and professional lives, and the added layer of technological protection measures allow rightsholders to further lock down content. The Act should be amended to clarify that a contract cannot override users’ rights, and to permit circumvention of TPMs for legitimate uses of copyright-protected material.
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