Contractual Override: How Private Contracts Undermine the Goals of the Copyright Act for Libraries and Researchers, and What We Can Do About It

We’ve written before about the use of contracts limiting author’s access to fair use, including how publisher contracts restrict innovation by undermining scholarly AI research. 

Though contractual override affects a wide range of users, it is a particular problem for researchers, such as those engaged in text data mining, and for uses by libraries, such as those seeking to preserve digital copies of copyrighted works. For those users, the licenses that accompany virtually every digital copy of a work that they seek to use contain contractual terms that limit right to use and derive new understandings from scholarship, even where fair use clearly allow for such uses. Contractual override of fair use poses a threat to research innovation and free expression by using private contracts to override these protections entirely.

In February 2025, we convened a panel of experts to explore potential solutions to this issue. Based on this workshop, and our own exploration of the issue, we’re pleased to share a draft of our paper, “Contractual Override: How Private Contracts Undermine the Goals of the Copyright Act for Libraries and Researchers, and What We Can Do About It,” that outlines the scope of the problem and some potential solutions. The paper is forthcoming in the next issue of the Journal of the Copyright Society of the U.S.A. We are especially grateful to Rachael Samberg for co-authoring this paper with us, and for working with us on this issue over the years. Our 2025 workshop was co-organized with Authors Alliance, Berkeley Center for Law & Tech, UC Berkeley Scholarly Communication & Information Policy Office, and the Association of Research Libraries. 

Abstract: A wide variety of scholarly and academic uses of copyrighted materials are governed not by copyright law itself but by licenses, terms of service, and other privately crafted contractual terms. In many cases, those terms purport to override exceptions and limitations granted by Congress in the Copyright Act for the benefit of users. As compared to other jurisdictions, the US does not have clear statutory provisions preventing private contracts from overriding certain user rights–rights that are meant to support innovation, teaching, research, and preservation, and designed to strike a careful balance between the interests of the public and copyright owners. Allowing contracts to upset this balance risks granting copyright owners excessive control at the public’s expense, ultimately stifling innovation, creativity and the free expression rights of subsequent authors. This paper is about the harm caused by contractual override to two of the most vulnerable and impacted user groups, academic researchers and libraries, and ways to limit that harm.

Read the full paper here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5393510