Fair Use Week 2025: Day Three With Guest Expert Sandra Aya Enimil

I am delighted to host Day Three of the 12th Anniversary of Fair Use Week with a write up from Sandra Aya Enimil, Director for Scholarly Communication and Collection Strategy at Yale Library. Sandra emphasizes in this post that while fair use is a critical right under U.S. copyright law, libraries may unknowingly waive these protections when licensing electronic resources. Negotiating a fair use savings clause can help ensure these rights are preserved. – Kyle K. Courtney

Saving Fair Use

by Sandra Aya Enimil

Fair use is a right available in the U.S. under the Copyright Act of 1976. It allows use of copyrighted content, under certain circumstances, without permission from, or fees paid to, the rights holder. It is a right available to both individuals and institutions. In academic libraries, while we have an number of rights and exemptions in the law, we greatly benefit from fair use as well. Many rights under U.S. copyright law are limited to physical copyrighted content we access or hold in our collections. Electronic resources (e-resources) are most often governed by licenses and contracts. Use of licensed e-resources makes it critical that librarians review contract language,¹ negotiate terms, and establish best practices for their institutions or consortia partners.

E-resources are governed by agreements that outline expectations for both the content provider and the licensees or users of that content. In the U.S., rights available under copyright law can be overridden by terms in a contract. So, while you may have rights to use content under fair use or other exceptions, at this time,² you can also license these rights away via contract or license. This can be done purposefully, recognizing that you are giving up certain rights because other rights in the contract are more important. Or it can be done inadvertently because you did not recognize that some limitations are ones that should not be limited under copyright law.

I have had the pleasure of working with brilliant colleagues to author a new book – available openly online – called “E-Resource Licensing Explained.” This book, which was released in January 2025, provides a practical guide to licensing e-resources. I, along with my co-authors, contributed small chapters in this work which we think will greatly benefit librarians. The book highlights ways to navigate possible pitfalls, like agreeing to restrictions that might limit your rights under the law, in licensing for e-resources.

One way to make sure that fair use rights continue to be available to your institution is by including or negotiating a fair use savings clause. [Please read Katie Zimmerman’s Fair Use Savings Clause chapter in E-Resource Licensing Explained.]

Such a clause preserves the fair use rights you have under US copyright law. Here is a sample fair use clause:

Licensee and Authorized Users may make all use of the Licensed Materials as 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 as granted therein.  Nothing in this Agreement 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. 

You can also consider explicitly stating a preservation of all rights available under U.S. copyright law. Keep in mind, if this clause doesn’t exist, you may need to negotiate for its inclusion.

Ensuring that fair use remains a protected right within electronic resource agreements requires vigilance and proactive negotiation. Without a fair use savings clause, libraries risk restricting their own ability to use content in ways that would otherwise be legally permissible under copyright law. This can have significant consequences for teaching, research, and accessibility, particularly as more content shifts to digital formats governed by contracts rather than statutory rights. By advocating for fair use clauses in e-resource licenses, librarians help safeguard equitable access to information and prevent undue restrictions on scholarly and educational activities. So, remember to SAVE FAIR USE and use these types of clauses to preserve your rights.

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Bio: Sandra Aya Enimil (she/her) is the Director for Scholarly Communication and Collection Strategy at Yale Library. At Yale, Sandra contributes to advancing openness by providing strategic insight, information and resources on scholarly communication, and the intersection of collection development. Sandra earned her Law and MSLIS degrees from the University of Illinois at Urbana-Champaign. Sandra has BAs in Political Science and Psychology from the University of Michigan and an MA in International Relations from the University of Ghana..

1. Even if you don’t plan to challenge terms, please read every contract. Read it like you are reading the work of a valued colleague or friend (or even that of a mortal rival or enemy). ↩︎
2. Our colleagues at the American Library Association and the Association of Research Libraries are working on addressing this issue. See American University. “User Rights Network Symposium: Protecting Copyright User Rights from Contractual Override.” Accessed February 24, 2025. https://www.american.edu/wcl/impact/initiatives-programs/pijip/events/user-rights-network-symposium-protecting-copyright-user-rights-from-contractual-override.cfm. ↩︎