5 Fair Use Savings Clauses

Desired Result

The aim of this provision is to preserve important rights for library users.  Many of the rights users of copyrighted works have under copyright law can be constrained or contradicted through a restrictive contract.  The purpose of this clause is to preserve the rights that users already have under the law.

Essentials of the Law

A “fair use savings clause” preserves the rights users have under copyright.  Users of copyrighted works always have certain reuse rights to those works, the broadest of which are codified under section 107 of the US Copyright Act as “fair use.”  This law provides that “fair use… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, [are] not an infringement of copyright,” and provides a four factor test to determine whether a given use is “fair.”^[1]

It’s important to include a fair use savings clause because the contract can otherwise get in the way of these legal rights.  Many things could be a fair use under copyright law but be prohibited by the terms of the contract.  In that case, the user would not be liable for copyright infringement, but the institution may still be liable for breach of contract.  The fair use savings clause ensures that this doesn’t happen.  This is particularly important because fair use is a flexible doctrine that can be interpreted to accommodate reasonable scholarly uses that for whatever reason were not explicitly addressed in the contract.  A fair use savings clause ensures that your users can take advantage of their full rights under copyright law, without having to anticipate and spell out every application.  This also ensures that patrons who are familiar with their rights under fair use are not surprised by contractual restraints that are more restrictive than the legal principles.

An important note is that, while commonly called a “fair use savings clause,” a well-constructed clause will include more than just fair use.  Fair use is the central and most commonly invoked limitation and exception to US copyright law, but 17 USC sections 108-122 contain additional exceptions that users may also need to rely on without risking breach of contract.  Additionally, content that is in the public domain or has been placed under an open license but is still included in the licensed content should not be limited by more restrictive terms in the license agreement.

Desired Language

A fair use savings clause can be integrated into the general grant of license or listed within a list of authorized uses, like this:

Licensee and Authorized Users may make all use of the Licensed Materials as is or may be consistent with the United States Copyright Act of 1976, as amended (17 U.S.C. §101 et seq.) including all limitations on and exceptions to the exclusive rights provided therein. Licensed Materials that have been published under a Creative Commons or other open license shall be subject to the terms of that open license; in the event of any conflict between this Agreement and the terms of any such open license, the terms of the open license shall apply.^[2]

Alternately, the fair use savings clause can be a standalone clause, like this:

No Diminution of Rights. Nothing in this Agreement, including but not limited to [the Sections enumerating authorized and prohibited uses], shall be interpreted to diminish the rights and privileges of the Licensee or Authorized Users with respect to any of the Licensed Materials, including exceptions or limitations to the exclusive rights of copyright owners under the United States Copyright Act of 1976, as amended (17 U.S.C. Sec. 101 et seq.), such as fair use. In the event that any content included in the Licensed Materials has been published under a Creative Commons or other open license, Licensor shall not place access, use or other restrictions on that content beyond those found in the open license, where applicable.^[3]

Tricks and Traps

If you are working with a license prepared by the vendor, this clause will usually not be present by default, and you will need to add it.

Vendors who are not based in the United States may object or simply be unfamiliar with the US copyright provisions specified.  That is easily addressed, however – if your users are predominantly located in the US, they will be subject to and familiar with US law and will assume that it applies; it makes sense to acknowledge that in the license. Your license should preserve the rights your US users take for granted.

 Creative Commons and other open licensed content is an important inclusion as publisher-based open access initiatives expand.  Many journal subscriptions include “hybrid” journals which publish both “closed” or “subscription” articles as well as open-licensed articles.  The subscription articles are governed by the terms of this contract, but the open-licensed articles should be governed by the open license that has been applied to them.  Including this language, if open-licensed content is included in the licensed materials or could conceivably be included in the future, prevents over-application of the more restrictive subscription terms to that content.

Importance and Risk

Depending on the nature of the licensed content, this can be a very key provision that can smooth over jagged edges elsewhere in the contract.  Having a fair use savings clause is a good safety valve for use cases that aren’t explicitly addressed, or are conflictingly addressed, elsewhere in the authorized and prohibited uses sections.  If it is unclear if something is covered by the contract, but it is clear that it is covered by a statutory copyright exception such as fair use, then you are all set.

One risk of such clauses, however, is overreliance on them. The library and/or the end user may be inclined to lean on the fair use clause, but the vendor is likely to adhere more rigidly to the enumerated uses, and that is a recipe for misunderstanding.  The general contractual interpretation principle of “the specific governs the general”^[4] may also come into play here: the fair use savings clause is a statement of general principle, while enumerated prohibitions are more specific.  The language in the “no diminution of rights” version of the clause attempts to nullify that interpretation (“Nothing in this Agreement, including but not limited to [enumerating authorized uses]”), but if a use puts the fair use savings clause directly in conflict with a specified prohibition, you are looking at a messy case, should it ever end up in court.  Another approach would be to limit your specific use and prohibition clauses to those you really need – if you are confident that you can identify (or foresee) them all.  When compared with a general clause, however, this approach entails a new risk, i.e., that including an exhaustive-seeming list of uses actually may decrease the likelihood of your savings clause language winning in a fight over contract interpretation.