The Battle Over Public E-Libraries: Taking Stock and Moving Ahead


22 Pages Posted: 24 Sep 2014

See all articles by Orit Fischman Afori

Orit Fischman Afori

College of Management Academic Studies Law School

Date Written: February 1, 2013


In this digital era public and academic libraries serve as key players in the promotion of access to knowledge. The legal discourse concerning realization of the promise of public e-libraries has thus far focused on two major battle-fronts: mass digitization of libraries’ collections and free access to the products of academic research funded by the public. Nonetheless, the radar of public and legal discourse has failed to identify a far more troublesome phenomenon, one which presents a threat to the very ability of the public e-libraries to fulfill their function. The digital era has created a profound shift in libraries’ practice, finding expression in the transition from purchasing shelf-books to purchasing licenses to electronic resources. These licenses control the libraries’ ability to pursue their declared goals, and highlight the core problem of private ordering in the information market. One of the most acute manifestations of this problem is the common practice, which has taken on world-wide dimensions, whereby these licenses restrict various uses otherwise permitted by copyright law. The exceptions and limitations acknowledged by copyright legislation are tailored in a manner that gives increased weight to the public interest. The clash between the phenomenon of restrictive contracts and the policy underlying intellectual property is therefore clear. The position advanced in this article is that there are sound justifications for a focused rule that would invalidate restrictive contracts, at least in the context of public e-libraries. These justifications are based on the function served by public e-libraries as a gateway to knowledge and in the promotion of social justice and freedom of speech. Moreover, the proposed rule should be adopted on an international level; otherwise it can easily be circumvented. The global political economy in the copyright arena has experienced major upheavals in recent years, resulting in a steadily growing demand for the expansion of users’ rights. These developments create the potential for the adoption of an international instrument designed to regulate the sphere of public libraries.

Keywords: Copyright law, e-libraries, exceptions for public libraries, restrictive contracts, digital accessibility to knowledge, libraries convention

Suggested Citation

Fischman Afori, Orit, The Battle Over Public E-Libraries: Taking Stock and Moving Ahead (February 1, 2013). 44 INTERNATIONAL REVIEW OF INTELLECTUAL PROPERTY AND COMPETITION LAW (Max Planck, IIC) (2013), Available at SSRN:

Orit Fischman Afori (Contact Author)

College of Management Academic Studies Law School ( email )

7 Rabin Blvd.
Rishon Lezion, 75190


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