A wide variety of scholarly and academic uses of copyrighted materials are governed not by copyright law itself but by licenses, terms of service, and other privately crafted contractual terms. In many cases, those terms purport to override exceptions and limitations granted by Congress in the Copyright Act for the benefit of users.. As compared to other jurisdictions, the US does not have clear statutory provisions preventing private contracts from overriding certain user rights—rights that are meant to support innovation, teaching, research, and preservation, and designed to strike a careful balance between the interests of the public and copyright owners. Allowing contracts to upset this balance risks granting copyright owners excessive control at the public’s expense, ultimately stifling innovation, creativity and the free expression rights of subsequent authors. This paper is about the harm caused by contractual override to two of the most vulnerable and impacted user groups—academic researchers and libraries, and ways to limit that harm.

How Private Contracts Undermine the Goals of the Copyright Act for Libraries and Researchers, and What We Can Do About It