The Incursion of Contract Law (Licensing) in the Library: Concerns, Challenges, Opportunities and Risks

Abstract

This paper discusses the current, developing and future impact that the incursion of contract law is having upon library practices, relationships and roles. Contract law asserts itself into library practice in the guise of a license, or contractual form of permission for content or services. Information exchanges based increasingly on contract and license impact not only libraries and similar institutions but also individual members of the society that the library serves. These concerns, not peculiar to the library, are presented in a broader societal context. Next, the challenges that this incursion causes reveal information markets that are unsustainable, far-reaching in the nature of rights affected, and unbalanced as far as the rights and obligations of the parties involved in a particular agreement are concerned.

Libraries serve as information focal points in a society and there is an opportunity for the library to serve both as a beacon, illuminating issues, and as a catalyst and focal point for change. However, the opportunities are not without some risk of instigating a broader shift across society regarding the mediation of information rights among rights-holders and users. Several broader concepts are discussed in this context. This discussion draws heavily on examples from the United States. However, the scenarios raise issues common to all jurisdictions and legal traditions.