Library – Centre on Knowledge Governance

Unfair Licensing Practices in the Library Sector

Teresa Nobre outlines a chilling range of practices by publishers to try to restrict the ability of researchers to conduct computational research. From ‘choice of law’ clauses which seek to circumvent EU law, to increased liability and penalties on libraries which fail to police their users. Nobre suggests a series of urgent measures to tip the balance back in favour of libraries and their users, and ultimately in favour of the right to research. This presentation was delivered at the User Rights meeting in Geneva on 17 June 2025. The full text is available below. The transition to licensing We have transitioned from a sales-based model in printed publications to a licence-based model in digital publications. What happens is that even if you have a fit-for-purpose framework that allows libraries to make certain uses of copyrighted works, they still need to rely on licences to have a first access to the material, and that gives publishers a lot of power in determining what libraries can and cannot do with the licensed materials, even if you have exceptions that allow them to make certain uses. Communia’s research We know that these licences tend to be subject to confidentiality agreements, which means that we don’t know what are the terms of these licences. Communia is a non-profit based in Brussels, we have been involved in copyright reform for many years, we have been coming to the SCCR for many years, and we decided in February this year, we invited licensing managers, so people that are from the library sector, public library and academic library sector in Europe, we invited them to come to Brussels and we held a Chatham House rules meeting. We also invited the European Commission to attend this meeting and observe this meeting. And this environment where people could not attribute each other was the right environment for licensing managers to come and talk about the issues that they are facing with the licences, so the unfair licensing practices, the unfair terms that they are being subject to. So I will be mentioning some of those practices, and I will start with a very hot topic right now, which is the topic of AI, but also text and data mining for scientific research. Maybe I should also tell you that in addition to inviting librarians to come and talk to us in private, in front of the Commission, we also invited them to share with us in confidence clauses that they considered unfair, clauses that are part of those licensing agreements or licensing offers. Efforts to Circumvent the European TDM Directive Maybe here for those that are not European, I should give you a bit of a legal context of Europe. In Europe, six years ago we passed a new directive that guarantees that researchers in Europe can make text and data mining uses of copyrighted materials for scientific research. So we have a mandatory exception for these research uses. And this mandatory exception is protected against contractual overrides. And what does that mean? It means that if a licence says that you cannot make those uses, you don’t need to follow the licence because the law, the European law, protects you. And what we realised, and we were very surprised, that publishers were actually concerned about prohibiting these uses in Europe when we have a law that allows these uses and prohibits contractual overrides. But that was indeed the case. So we noticed, and they told us, that since 2023, so place it at the same time where generative AI is raising, suddenly all the contracts are saying library users cannot conduct text and data mining on e-books and e-journals that are available in the libraries. They cannot conduct any related AI uses with those materials. ‘Choice of Law’ clauses And surprisingly, what was interesting to see was that, well, they were actually concerned about putting those prohibitions in those contracts, although the law would not allow for those prohibitions, because they could circumvent the EU policy, the EU law, and our contractual overrides prohibition by selecting a law that’s outside of Europe. So we know that ‘choice of law’ is typically a clause that the parties need to negotiate and takes time to negotiate. Everyone wants to choose their own law. But in this case, by choosing a law that’s not the national law where the library is located, meaning that’s not the EU law which would protect these uses against contractual overrides, they are able to circumvent basically the EU law and the prohibition of contractual overrides. And that’s enough. So imagine all of the work that we have done throughout the years to have exceptions in place, exceptions that are protected against contractual overrides, is simply circumvented by a choice of law clause. I’m going to give you an example of what prohibition of AI uses in these licences means. And, you know, there’s different ones. And you can see in our report, we gave some examples of it. Prohibition of AI-enabled browsers But publishers go as far as prohibiting the use of browsers with connected AI functionality. People, nowadays, there’s no browsers that do not use AI. And publishers are prohibiting the library users from using browsers with AI functionality. This is how far it goes. We saw different variations of this. For instance, you see one that’s very simple, straightforward. You cannot conduct text and data mining, which is exactly what the EU law allows you to do. And when it comes to the choice of law, I think typically what we are seeing is that they are choosing U.S. law, maybe because the U.S. law right now, it’s not very clear if it allows these sort of uses or not. If it’s a UK publisher, they will select the U.K. law, which also doesn’t permit as many text and data mining uses as the EU law. So this is the first, let me say, the first category of obstacles and really

The South African Copyright Amendment Bill at the Constitutional Court: Notes from the Presidential Referral of the Bill (Part II)

Sanya Samtani / 27 May, 2025

In Part I of this blogpost, I briefly set out the procedural history of the copyright reform process that led to the Presidential Referral of the Bill to the Constitutional Court. I also briefly explained the scope of Referral proceedings and the parties involved. In this Part, I discuss the issues raised during the hearing and what to expect going forward. Issues raised during the hearing In line with the Court’s past jurisprudence, the proceedings centred around the constitutionality of the two sets of provisions referred by the President on the basis that he referred them – the fair and equitable remuneration provisions and the new exceptions and limitations. I discuss the arguments raised regarding each set in turn. I focus here on the oral submissions – the full written submissions on record are available here. Fair and equitable remuneration (proposed sections 6A, 7A, 8A) On the fair and equitable remuneration provisions, the President remained concerned that these provisions apply retrospectively which, in his view, would constitute arbitrary deprivation of property. The President explained that although Parliament deleted the specific subsections that explicitly provided for the retrospective application of the provisions, he believed that the provisions were still applicable retrospectively. Retrospectivity, he argued, would constitute a substantial interference in the copyright owner’s enjoyment of their property (and the profits derived from it) as it would open up the possibility for windfall gains for authors notwithstanding whether their original historical assignment of copyright was unfair. Moreover, the President argued that the indiscriminate application of these provisions to all past and future assignments constituted an arbitrary deprivation of property. To prevent retrospective application, the President argued that it was necessary for the language of the provisions to explicitly state that they would apply prospectively. Underlying this argument, the President confirmed that in his view, copyright constituted a constitutionally protectable set of property interests. When questioned, the President conceded that should these provisions be read exclusively prospectively they would not be unconstitutional. The President’s initial position was supported by the Freedom Front Plus. It was also supported by the Democratic Alliance who argued that the only reasonable interpretation of these provisions was that they applied retrospectively to past and future profits derived from the exploitation of the work under copyright. On a prospective interpretation, the DA argued, the language that allows the existence of an agreement to the contrary in proposed section 6A(2) would render the provision a nullity. The DA also supported the proposition that these provisions ran the risk of arbitrarily depriving copyright owners of their property on the basis that there was a substantial interference with the right by significantly reducing its value, imposing uncertainty costs upon the entire industry and interfering with the contractual autonomy of the parties. Further, the DA argued that the lack of similar language in sections 7A and 8A was irrational – and although the President adopted this argument in his oral submissions, irrationality was not expressly part of the 2020 or 2024 Referral letter, raising the question whether the Court can consider it. NAB/SANEF/CFE aligned themselves with the arguments made by the President that these provisions had retrospective effect and ran the risk of arbitrarily changing the rights negotiated and acquired by broadcasters in the current regime, asserting that the broadcasting industry may face dire consequences as a result. Parliament, however, explained in their oral submissions that they had a clear legislative intent to ensure that the impugned provisions had prospective effect. This intent was demonstrated by the deletion of the relevant subsection from all three provisions, as acknowledged by the President, in addressing the reservations set out in his 2020 Referral letter. Recreate Action aligned with Parliament’s position on the deletion of the explicit retrospectivity provisions, and argued that there is a presumption against retrospectivity in the law. Where a provision can be read prospectively, it must be read in that manner. Recreate Action responded to the DA’s argument that a prospective reading of section 6A renders it a nullity by explaining that the non-obstante clause in that section would ensure its continued application. In any event, Recreate Action argued that even if the impugned provisions applied retrospectively, that did not in and of itself render them unconstitutional. To the extent that they were a deprivation of property, Recreate Action argued that even if copyright was incorporeal constitutional property, it required a lower threshold of justification for such deprivation, and that the deprivation only encompassed a single incident of ownership – the royalty right. Finally, Recreate Action responded to the claim of indiscriminate application as arbitrariness by explaining that the standards of ‘fairness’ and ‘equity’ in the text of these provisions act as levers to calibrate the application of these provisions to address unequal bargaining power and prevent any windfall gains. In addition to testing these arguments, the Court raised concerns about the specificity of the President’s reservations with regard to these provisions. In particular, the Court was concerned as to whether Parliament had a meaningful opportunity to address the whole of these provisions – in other words, whether the President’s 2020 Referral letter flagged the whole of these provisions as triggering his reservations, or just the relevant subsection that explicitly provided for their retrospective application. If the Court were to find that the whole provisions were not referred to Parliament – to enable Parliament’s consideration of them prior to the Referral to the Court – this may bar the consideration of the merits. New exceptions including education and library exceptions (proposed sections 12A-D, 19B, C) I now turn to the second set of provisions that the President was concerned about – the new exceptions and limitations. The President argued that the exceptions and limitations sought to be introduced go too far and would conflict with the normal exploitation of the work and cause unreasonable prejudice to the rights holder. The President was also concerned that the fair use provision suffered from vagueness and introduced a level of uncertainty that could