Computers in Libraries
Vol. 22, No. 5 • May 2002

Table of Contents Subscribe Now! Previous Issues ITI Home
The Delicate Dance of Database Licenses, Copyright, and Fair Use
by George H. Pike

Over the last several years, a number of writers in the library and information communities (including me) have expressed serious concern about the fate of copyright's fair use doctrine. The impact of several recent court decisions and the 1998 passage of the Digital Millennium Copyright Act (DMCA) have served to weaken fair use considerably. Libraries' increasing reliance on licensed electronic content, including online and Internet databases, CD-ROM products, e-books, and e-journals, has raised serious questions as to whether fair use can survive in an electronic climate.

However, having been an academic librarian for more than 15 years, most of which has been in law school libraries, I have come to the realization that I have comparatively little interaction with the fair use doctrine in my day-to-day library activities. I am most likely to encounter copyright law in areas such as reference, photocopying, and interlibrary loan (ILL) service, which are covered by specific copyright rules, not by the fair use doctrine. My library, like all libraries, also interacts on a daily basis with copyright's first sale doctrine—whether or not we know it. Another copyright issue that we may encounter is determining whether or not a particular item is in the public domain. Lest you begin to breathe a sigh of relief, however, let me suggest that the same pressures that have weakened the fair use doctrine are putting equal or greater pressure on these other copyright areas.

U.S. copyright law arises from Article I, Section 8 of the U.S. Constitution, which empowers Congress to pass laws that "(P)romote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries." Congress has enacted a number of copyright laws that are currently gathered in Title 17 of the United States Code (available online at The major elements of current copyright law are the Copyright Act of 1976 (as amended) and the DMCA.

Section 107: The Fair Use Doctrine
The fair use doctrine is located at Title 17, Section 107 of the United States Code. Fair use arose out of the recognition that in order for there to be progress in science and the arts, the grant of copyright had to be flexible enough so that the knowledge protected by copyright could also serve as the basis of new knowledge. The doctrine provides that certain uses of copyrighted works for purposes such as "criticism, comment, news reporting, teaching, scholarship or research" are permitted without requiring permission from, or payment of royalties to, the copyright holder. The doctrine identifies four factors that are evaluated in order to determine if a proposed use of copyrighted material is "fair":

  • The purpose and character of the use

  • The factual or creative nature of the original work

  • The amount and substantive value of the work being copied relative to the work as a whole

  • The effect of the use on the market for, or value of, the copyrighted work
No one factor is theoretically more important than others, nor is it a matter of "winning" on a majority of the factors to find a use fair. Courts that have explored the issue generally look for a use that is "transformative," creating something new and different in keeping with the "promotion of progress" policy.

Fair use is designed to be employed by the end-user, such as the patron, for his or her use of a copyrighted work. To the extent that the library is not the "end-user" of information, serving primarily as a conduit by which the user accesses information, the library is not in a position to interact with fair use. For example, I often put on my professor's hat and access the library's print and electronic resources in support of my teaching and scholarly activities (like this article). I make regular trips to the photocopier with library books and journals, and to the laser printer to print articles from databases and e-journals. In order for me to legally make these copies, my use of those documents must fit within fair use. (For any publishers reading this article, the copying is done in support of personal research and teaching, limited to single chapters and articles in a nonprofit environment. Really!) My library, which owns or licenses these materials, is not a factor in my use.

Libraries do often engage in projects in which they are the end-users, and thereby do need to be concerned about copyright and fair use. Some librarians from a local public library recently told me about a project that they were working on to identify old photographs and portraits in their collection. They were using a variety of sources, including obituaries from the local newspaper archives, to help them in the process. They ultimately wanted to publish this project, including information obtained from the obituaries, on their Web site. In that capacity, the library was the end-user of the newspaper's obituary data and needed to be compliant with fair use, or to obtain permission.

Section 108: Copying by Libraries and Archives
But let's change the situation a bit so that rather than doing the copying and printing myself, I had the library staff do it for me. (I'm the boss—isn't that one of the perks?!) Or, perhaps I am simply Joe Patron, who has called the library and requested a photocopy of an article or book chapter. Or, another library is requesting an ILL of the article. In these situations a library is protected by a separate set of specific rules found at Title 17, Section 108 of the United States Code. Under these rules a library may make a single copy of an article, on request, for a patron without violating copyright. Similar rules permit a library to make an archival copy—which may be in digital form—of a work that is damaged, deteriorated, lost or stolen, or that requires an obsolete technology to access (e.g. reel-to-reel tapes, 8-inch floppy disks, microcards, etc.). The same section also covers copying in support of ILL activities. These rules have some limitations:

  • The library must be open to the public.

  • The copying must be done without any direct or indirect commercial advantage.

  • No systematic or multiple copying is permitted; copies must be given to the patron.

  • Limits exist on the number of ILL requests that can be made of a certain work.
My former library got an in-depth education on these rules when we received a fairly nasty letter from lawyers representing a publication to which we subscribed. Our law library provided a photocopying service to local attorneys, who could call and request copies of materials. Our staff would copy and deliver them to the patrons and charge a small fee. The publication alleged that we were infringing on its copyrights and threatened litigation if we did not cease and desist. After researching the issue, we pointed out that the library met the conditions of Section 108 and that the copying was permitted. We pointed out that we met the necessary requirements:
  • We were open to the public.

  • We were nonprofit, and the copying was done on a cost-recovery basis.

  • The items copied were owned by the library and part of its general collection.

  • The copying was done at the request of the patron.

  • Only single articles were being copied.

  • The copy became the property of the user.
Nowhere in our response was the fair use doctrine mentioned. Given that we never heard back from the publication's lawyers, we concluded that the copying was permitted.

Section 109: The First Sale Doctrine
Of course, libraries would be hard-pressed to even exist in the absence of another provision of copyright law called the first sale doctrine. Located at Title 17, Section 109 of the United States Code, the doctrine indicates that once the copyright owner agrees to sell a particular copy of a work, the copyright owner may not control further resale, rental, lease, or lending of the copy. Thus, libraries are free to lend their books, pamphlets, magazines, photographs, audiotapes, compact discs, videotapes, and DVDs to their patrons. Libraries can sell these items at the annual book sale or on eBay. A library could conceivably lease a particularly valuable collection to another library, museum, or private party if it so chose.

Conspicuous in its absence from the first sale doctrine, however, is any mention of electronic databases, CD-ROMs, or software. The reason for this absence is both simple and complex, but it boils down to the fact that most software and databases are licensed rather than sold. In licensing a database or piece of software, the vendor is only selling the right to use or access the product for a limited time and under limited circumstances. (A good parallel would be the distinction between purchasing a car and leasing a car. You can't sell your leased car to a third person, you must pay extra if you use the car too much, and you have to give the car back when the lease is up.) Courts have consistently held that the licensing of software or databases is not a sale and consequently is not covered by the first sale doctrine.

Licenses are covered by increasingly complex agreements that dictate a number of terms and conditions relating to the use of the software or database. I have a file folder full of such agreements and the legalistic gobbledygook can be daunting. (And I used to be a lawyer!) These agreements are governed by both copyright law and contract law, which only adds to the complexity (and the legal legwork required to keep up with them). However, it is often these restrictive terms—coupled with the DMCA and other changes in the copyright law—that weaken the library's fair use and Section 108 rights.

Copyrights and Licenses
I pulled several of our agreements out of the file and reviewed them while thinking about how the language of the agreements would have affected my fair use or Section 108 rights in the situations I described earlier. One database agreement, under the section titled "Copyright and Permitted Use," said that, "except where expressly permitted by the Terms and Conditions the Data may not be copied, distributed, sold, reproduced, licensed, or dealt with in whole or in part." Imagine this scenario: The Zebulon Pike (my distant relative who discovered Pike's Peak) Memorial Law Library has canceled several print journals and subscriptions and instead accesses them electronically, with the databases covered by the above agreement. The access is by IP range within the library and is therefore accessible by in-library patrons and staff. The library operates a service that provides photocopies of materials on request. So my question is, under this agreement, can the library provide a printout of an article from the electronic database to the customer as I would have previously provided a photocopy? The license indicates that the data may not be copied or distributed. A telephone patron is not an in-library user, and so is probably not covered by the Terms and Conditions of the agreement. Section 108 would permit this type of activity, but the agreement does not. Our library has addressed this agreement by not providing any nonlibrary access to our databases. Patrons must come into the library and do their own printing.

Another licensing agreement from the files also has several sections that cause concern. The agreement says: "You may utilize the licensed information for your own internal use only or on behalf of your clients in the normal course of your business"; "You must restrict access to the licensed information to your employees who require access in the performance of their employment duties"; "Licensed information or any part of it may not be used, in any manner, except as express permitted under this agreement"; and "You may not sell, assign, disclose, furnish, or redistribute any licensed information to any other person, firm, corporation, or entity." Put aside for the moment the basic problems about the business-oriented language about clients and firms. (We have found this to be fairly typicalof license agreements to databases that are marketed primarily to corporate or business settings—yet another difficulty that we must dance around.) Fair use was nowhere to be seen in the agreement, so did that mean that fair use was not "express(ly) permitted"? If the library cannot "furnish or redistribute" the information to "any other person," could my patron make a printout and take it with him? (Much less have the library make a printout for him as a phone-in patron.) Is my library responsible for a patron's use or misuse of the data, whether fair or not?

This last question is by no means a casual issue. Among the DMCA's various clauses is a section known as the "safe harbor" provision. This language provides that Internet service providers (ISPs) are not responsible for the infringement or misuse of copyrighted content by end-users, unless they have notice. This provision was intended to protect AOL, Juno, and CompuServe from being directly responsible for the actions of their millions of users. However, if a copyright owner serves notice on the ISP that material is being infringed, then the ISP is responsible for having the offending material removed, or it is at risk for a lawsuit.

Learning All of the Steps
Is my library an ISP? In a different context, an appeals court in California said that a library that provides public access to the Internet is an ISP. (The issue was whether a library was responsible for obscene Internet content that was accessed by a patron. The California court said that provisions of the Communications Decency Act providing immunity to ISPs for "their failure to edit, withhold, or restrict access to offensive material" applied to libraries.) If so, then all of a sudden I may need to be concerned about the use and misuse of electronic resources by my patrons. If the content vendor indicates to me that copyrighted data is being misused, the DMCA indicates that the material must be removed or denied to the patron, or the library can be sued. I am convinced that in this litigious climate (and remember, I work at a law school; I know litigious!), the library is likely to be advised to remove the material regardless of whether the patron's actions were permitted under fair use or other grounds.

Our most important response to these agreements has been to pay much more attention to the language that they use. If a contract uses business language such as "client" or "firm," we change the language to recognize "patrons" or "library users." We also try to be very clear about which users are included and which users are excluded from the agreement. In our university's library system, for example, many of our agreements limit use of a database to students, faculty, and staff. Public patrons from outside the university community are not covered. In response, we are requiring user authentication before allowing access. We do not hesitate to suggest language or changes in the license agreements if possible. (Sometimes it is not possible, particularly in software "shrink-wrap" or "click-wrap" agreements.) We are also paying greater attention to who actually owns the copyright. If I want to use an article from The New York Times that I got from LexisNexis, do I deal with The Times or Lexis in addressing copyright questions? (When this happened to me, I called Lexis first.)

Life, as they say, is never as simple as it used to be. Fair use and Section 108 rights are not dead at this point, but their breathing is a bit strained from performing all of this fancy footwork. As more of our libraries transition to electronic resources, the main impact seems to be in protecting our patrons' ability to effectively, completely, and legally use these resources, without incurring copyright or breach of contract liability. It could prove to be a delicate dance.

George H. Pike is director of the Barco Law Library and assistant professor of law at the University of Pittsburgh School of Law. He received his M.L.S. from the University of Washington and his law degree from the University of Idaho. His e-mail address is
Table of Contents Subscribe Now! Previous Issues ITI Home
© 2002