The New Commercial Law and Public Information Policy: The Libraries and UCITA
Practising Law Institute, Understanding Electronic Contracting (2001) and reprinted in 2 Internet Law & Business 783 (2001).
18 Pages Posted: 10 Aug 2017
Date Written: August 9, 2017
America’s libraries largely opposed the Uniform Computer and Information Transaction Act (UCITA) in part because it permits contract restrictions on information that go beyond copyright limitations. In the world of contract limitations there is no fair use and no public domain. One opposition statement of the day stands for many: “the provisions of UCITA would substitute the private law of contract for the public law of copyright in ways that would leave consumers, including libraries, with little bargaining power and few rights.” Libraries feared it would limit their rights to make their collections available to patrons.
Although UCITA is law in only two states, those contract restrictions are now reality. The nation’s leading libraries now themselves impose contract restrictions that they once opposed.
For example: HathiTrust is a collaboration of libraries of research universities and colleges to establish a digital repository of their collections. The member libraries make public domain works available to all to view, but deny downloading to anyone who is not personally affiliated with a member institution. So a public library such as that of a state university denies its unaffiliated patrons access to its collections that it grants to people who are affiliated with private university libraries out-of-state.
The likely source of this restriction is the agreement under which Google digitized the libraries’ collections. HathiTrust does allow downloading of public domain works not digitized by Google.
This article from 2001 anticipated issues of contract versus copyright that are of new relevance. It may also have historical significance to some readers. The article itself does not deal with HathiTrust or Google.
Keywords: public domain, fair use, contract, copyright, UCITA, libraries
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