Library DrawingThe CONNector

January 2001Volume 3 Number 1

A License To Drive On The Information Highway?

Hilary T. Frye, Legal Reference and Electronic Resources Librarian

Across the nation, librarians are carefully studying a proposed law known as UCITA (Uniform Computer Information Transactions Act). This law act was drafted by the National Conference of Commissioners on State Laws (NCUSSL) with the intent that it would be adopted into law by each state. The object of UCITA is to promote the development of a vibrant digital market economy by establishing a uniform electronic licensing law to replace the hodge-podge of contract law now in place. Contract law varies from state to state and can pose many obstacles to digital entrepreneurs who wish to mass-market their products.

For the past several years, libraries have been negotiating customized electronic product contracts with vendors. But supplements or updates to these products often come with non-negotiated "click-through" licensing agreements or "shrink-wrap" licensing agreements. These licenses can be very restrictive. Libraries have operated for years under federal copyright law provisions known as the "first sale doctrine" and "fair use". If a library purchases a copy of a book, then the library may lend the book and also permit users to copy portions of the book for study, research or education.

UCITA makes no fair use exemptions for libraries and legalizes these non-negotiated licenses. If a library purchases information in the form of a CD, it may arrive with a "shrink-wrap" license, which prohibits the product or portions of the product from being lent to users, downloaded or copied. The library may also not be permitted to review or critique the product. Subscriptions to on-line e-journals may come with "click-through" licenses that include similar restrictions in addition to forbidding remote access on the part of library cardholders. We are no longer purchasing copies of books; we purchase licenses to use information in limited ways and sign contracts to that effect.

Until now, Federal copyright law, which seeks to balance the rights of creators, publishers and users, has been applied to electronic products and the Internet. For over a decade amendments have extended protection to digital products. The most recent of these, the Digital Millenium Copyright Act establishes severe penalties for software or digital information piracy. The Founding Fathers wished to establish a balance between the protection of intellectual property and promotion of the progress of science and useful arts. The Patent & Copyright Clause of the U.S. Constitution (Art.I, Sec.8, Clause 8) limits exclusive rights so that innovative ideas may reach the mainstream and foster yet more creativity and originality.

UCITA has already been adopted in two states and defeated in one, even though it was not finally approved until July 1999 by NCUSSL. It may be introduced in twenty states this year. NCUSSL originally began working with the American Law Institute (ALI) nine years ago to create an electronic contracts or transactions amendment. But in 1999, ALI ended the collaboration and declined to endorse the proposed law. UCITA has been criticized from several directions for a number of problems ranging from pre-emption of consumer protection law and copyright law to First Amendment infringements.

In December of 2000, a nationwide UCITA satellite teleconference was held. Each of the four speakers had been an advocate for UCITA that led to its recent passage in Maryland and Virginia and its defeat in Delaware. They shared their experiences and insights and provided tips on how to prepare for the introduction of UCITA in the conferees' home states. January 14, 2001, the American Library Association will offer a UCITA session at the Midwinter Conference in Washington, D.C. as well as an on-line UCITA tutorial.

To learn more about UCITA, log onto these websites:

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