MLA Position Statements and FAQs
Copyright and Lending Software Position Statement
The Medical Library Association (MLA) supports the position of the Copyright Software Rental Amendments Act of 1990, which holds that libraries in not-for-profit health sciences institutions may lend software for not-for-profit purposes without securing the permission of the copyright owner as long as a prescribed "warning of copyright" is affixed to the software packaging. Health sciences librarians must understand the copyright law and its amendments that directly relate to software and must promote the rights of users under the law.
Health sciences librarians are charged with supporting the work of their clients: practitioners, educators, students, and other professionals in the biomedical sciences. As pioneers in the use of technological innovations, health sciences institutions continue to enhance their libraries' collections with computer software and other media. These resources have become necessary components of health sciences education, patient care, and research. Sharing software with users is consistent with the established library practice of providing books, journals, and other resources directly to clients. Just as librarians understand and recognize the copyright law's impact on most library operations, they must also become conversant with copyright law as it relates to computer software.
The foundation for the U.S. copyright law is the copyright phrase in the U.S. Constitution, article 1, section 8, clause 8: "to promote the progress of science and the useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries." The copyright law and its subsequent amendments and court decisions strive to balance the rights of authors and the rights of users.
However, this balance becomes more complicated in the face of modern technology. As with all new technologies, regulating computer software has proven problematic and poses monumental challenges for both creators and users. In recent years, however, copyright guidelines for software have emerged. The Software Copyright Act of 1980 defined the term computer program, authorized copyright protection, and provided fair-use guidelines for owners of copies of copyrighted programs at Copyright Section 117. This legislation gave libraries the right to make one archival copy of a computer program and to reformat the program to make it compatible with specific hardware but did not allow them to use unauthorized copies of software or to make unauthorized copies for others.
The Computer Software Rental Amendments Act of 1990, amending Copyright Act Section 109, granted the copyright owner of a computer program the right to prohibit the resale, lending, or leasing of the program. However, an exemption in this legislation allowed not-for-profit libraries and not-for-profit educational institutions to lend software for not-for-profit purposes without securing the permission of the copyright owner. To discourage unauthorized copying, each software program must have a copyright warning affixed to the package. The Computer Software Rental Amendments Act is effective through October 1, 1997, but may be extended.
In 1994, the register of copyrights presented a report to Congress, The Computer Software Rental Amendments Act of 1990: The Nonprofit Library Lending Exemption to the Rental Right, on whether the library exemption "has achieved its intended purpose of maintaining the integrity of the copyright system while providing non-profit libraries the capability to fulfill their function" . The report was based on comments from library and software associations, including MLA, which responded to the Copyright Office's 1993 Notice of Inquiry requesting feedback and information to help evaluate how the nonprofit lending provision is working. Although the report assessed its own findings as inconclusive and called for further study and analysis of software-lending patterns by libraries, it raised several important issues regarding software licensing agreements.
Most software is leased rather than sold: the user buys the right to use the software, while the software publisher retains ownership. To control the subsequent rental and potentially illegal copying of software, many software producers have attempted to restrict software use through licensing agreements in the form of a message that is shrink-wrapped with the software. This "shrink-wrap contract" states that opening the package constitutes agreement with the publishers' licensing arrangements, which in many cases explicitly prohibit renting or lending the software.
MLA responded to this issue with the recommendation that libraries post the copyright warning in the facility or at the computer where the software is used. Following up on this recommendation, the report suggested that in the absence of legislation, librarians post a clear warning on every computer available for use by patrons. In the future, the U.S. Copyright Office plans to work with copyright owners and librarians to develop standardized language for this purpose. The report also suggested that computer log-in screens show warnings when a program is loaded on the user's hard drive and that copyright holders specify the rights and responsibilities of licensees when copies of computer programs are lent or transferred under license.
Do these restrictive licenses violate the Computer Software Rental Amendments Act exemption that gives nonprofit libraries the legal right to circulate software? The law explicitly protects the intellectual property rights of the software publishers yet allows not-for-profit libraries to lend software. Although librarians should encourage users to comply with copyright law and license provisions, they must not forgo the legal rights of their users in the process.
One suggestion that seeks to avoid ambiguous interpretations of the licensing agreements is for purchase orders for computer software to include a statement indicating that the software is for library clients' use and is being purchased with the intent to circulate it. It may then be argued that the supplier knew of the intent to circulate the software and agreed to the library's conditions.
MLA continues to support the fundamental purpose of the copyright law, and its members recognize their professional responsibility to observe the law. Librarians should familiarize themselves with the copyright law regarding computer software. MLA encourages libraries to continue to educate users about the rights and responsibilities regarding copyright issues. Copyright should not be an obstacle to education or access.
The rights of health sciences librarians to lend software to users in not-for-profit institutions are guaranteed under the Computer Software Rental Amendments Act of 1990. Because the information and knowledge contained in software is often vitally important to library users, MLA supports and advocates the right of nonprofit libraries to lend software. For further information on this issue, please refer to The Copyright Law and the Health Sciences Librarian, 1989 Revised Edition .
Prepared March 1995 by
Medical Library Association
Last Updated: 2007 July 13