#ProtectOurFutureMemory: Why Libraries Need Fair Contracts

information labs was proud to participate in the launch of the “Our Future Memory” campaign at LIBER 2025 in Lausanne, where library professionals, researchers, and policy advocates gathered to confront one of the most pressing challenges facing our digital knowledge ecosystem. The energy in that room was palpable: here were practitioners who had spent years wrestling with increasingly unfair digital licensing terms, thinking on how to bundle forces yet again for their digital survival, and even more importantly, for the protection of our future memory as a society. 

The Crisis Facing Memory Institutions

Libraries, museums, and archives stand at a crossroads. These vital public institutions have transformed from owners of knowledge to mere renters, trapped in an unfair digital licensing system that threatens their core mission. The shift from purchasing books to licensing digital content has fundamentally altered the power dynamic, placing unprecedented control in the hands of publishers who now dictate who can read what, when, where, and how.

But here’s the problem: libraries exist in a legal grey area. They’re not “consumers” protected by EU consumer law, nor are they traditional “businesses” that can leverage competition law against publishers abusing their dominance. This gap leaves libraries  uniquely vulnerable to exploitation.

The Digital Fairness Gap

The European Commission’s own “Fitness Check” reveals a troubling reality: even consumers, who enjoy explicit legal protection, face significant vulnerabilities due to digital power imbalances. If protected consumers struggle, imagine the position of unprotected libraries. The Commission acknowledges a “growing mismatch between the concept of the ‘average consumer’ and digital realities” and notes that existing frameworks “fail to address broader power imbalances that make all consumers vulnerable due to limited bargaining power.”

This internal recognition strengthens the case for extending digital fairness principles to public interest institutions. The upcoming Digital Fairness Act (DFA), scheduled for mid-2026, presents a crucial window for advocacy.

How Publishers Exploit Libraries

The COMMUNIA report “Unfair licensing practices: the library experience” documents systematic abuse across European libraries. Publishers leverage their near-monopoly positions to impose terms that would be unthinkable in other sectors. We have summarised the main abusive clauses below and included a more detailed table at the end of our post.

Blocking Access to Collections

Refusal to Deal: Publishers routinely refuse to license popular fiction and textbooks to libraries, forcing exclusive direct-to-consumer sales. Academic libraries discover that essential course materials have been pulled mid-semester, often without notice.

Exploitative Licensing Models:

• Bundled licenses that force libraries to buy expensive packages of unwanted titles
• Individual user licenses that require sharing personal student data with publishers
• Metered licenses that make documents self-destruct after limited uses, forcing constant repurchasing

Arbitrary Content Removal: Publishers reserve the right to withdraw content “in their sole discretion” for virtually any reason, leaving libraries with gaps in their collections just when users need access most.

Stifling Research and Innovation

AI Restrictions: Since 2023, publishers have introduced sweeping prohibitions on using licensed content with artificial intelligence tools. Some clauses even ban browsers with integrated AI features, creating an impossible policing burden for libraries.

Text and Data Mining (TDM) Bans: Despite EU copyright exceptions permitting research uses, publishers contractually override these rights. They threaten to cut entire campus access if they suspect a single user of conducting legitimate TDM.

Foreign Law Imposition: Publishers based outside the EU impose foreign legal frameworks (like Delaware state law) that conflict with European research protections, creating legal uncertainty that undermines EU public policy.

Creating Institutional Liability Traps

Full Liability Clauses: Libraries face complete responsibility for all user actions, despite having no reasonable way to monitor research activities.

Draconian Penalties: Publishers claim unilateral power to determine breaches and impose immediate termination, access denial, and legal action at their “sole discretion.”

Audit Rights: Publishers demand extensive inspection rights over library operations, potentially dictating institutional practices.

Confidentiality Requirements: Libraries cannot share pricing or terms, creating a “data-poor environment” that weakens collective bargaining power.

The Solution: A “Black List” for Digital Fairness

The EU has successfully used “black lists” of automatically unfair terms in consumer protection law. Terms on these lists require no individual assessment of fairness; they’re prohibited outright. Examples include clauses that exclude liability for serious injury, require payment for unreceived services, or allow unilateral contract changes.

This approach isn’t limited to consumer relationships. Belgian law addresses B2B contractual imbalances, and the Digital Markets Act regulates “gatekeeper” platforms to ensure fair treatment of business users. The EU clearly states that contractual freedom requires limits when power imbalances create unfair outcomes.

Memory institutions, with their public interest mission and extreme publisher dependence, fit this pattern perfectly. A targeted “black list” would provide legal certainty and shift the burden from individual libraries negotiating alone against global publishers to clear, enforceable standards.

Specific Clauses That Must Be Prohibited

Drawing from documented abuses, at least the following clause types should be automatically unfair in memory institution contracts:

1. Unilateral withdrawal rights without clear, objective justification
2. Broad AI and TDM prohibitions that override EU research exceptions
3. Foreign choice-of-law clauses that circumvent EU and Member states laws
4. Restrictive “authorised user” definitions that prevent legitimate collaboration
5. Disproportionate liability clauses holding libraries responsible for all user actions
6. Excessive audit and inspection rights that interfere with institutional autonomy
7. Restrictive confidentiality clauses that prevent transparency and collective advocacy

The Path Forward

The Digital Fairness Act represents a strategic opportunity to address this crisis. By including specific provisions for memory institutions or developing a comprehensive “Digital Knowledge Act,” policymakers can ensure that the digital future supports rather than subverts public access to knowledge.

Without intervention, we risk a future where commercial power dictates educational and research access. Libraries that once built permanent collections for future generations now face content that disappears at publishers’ whim. Researchers who should benefit from EU-protected TDM rights find themselves blocked by contractual override. Students discover their textbooks vanished overnight because a publisher changed business models.

This isn’t just about libraries; it’s about preserving the fundamental infrastructure of knowledge in democratic society. The “Our Future Memory” campaign recognises that memory institutions serve as information gateways for the 21st century. Their ability to fulfill this mission depends on fair, reasonable access to digital content under terms that respect their public service role.

The choice is clear: act now to protect public interest institutions, or watch as unchecked commercial power continues to erode the foundations of equitable knowledge access. The Digital Fairness Act offers the perfect vehicle for change, but only if policymakers acknowledge that digital fairness must extend beyond traditional consumer protection to encompass the institutions that serve our collective memory and future learning.

Memory institutions have adapted to serve digital natives. Now EU law must adapt to protect these essential public services. The stakes couldn’t be higher: our collective future memory depends on it.

Written by Caroline De Cock, LL.M. , Head of Research.

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Summary Table: Abusive Clause Table Based on the COMMUNIA report “Unfair licensing practices: the library experience”.

Clause ID	Problematic Nature & Impact
1. Withdrawal of Titles	This clause grants publishers unilateral and excessively broad discretion to remove content, even for vague reasons like “for whatever reason” or “in its sole discretion.” This leads to arbitrary removal of titles, disrupting library collections and causing loss of access without prior notice, often only discovered when users are unable to access needed materials.
2. Restrictive AI Clauses	This clause broadly prohibits the use of licensed content with AI tools, severely hindering scientific research. It prevents researchers from using AI for legitimate purposes like summarising publications or analysing data, and places an unreasonable and unenforceable burden on libraries to police such activities.
3. Restrictive AI Clauses (Broad)	This clause is even more expansive, prohibiting a wide range of automated analysis and content generation, including the use of common web browsers with integrated AI features. Such prohibitions often overlap with legally permitted text and data mining exceptions in EU law, yet publishers insist on them, creating legal uncertainty and stifling innovation.
4. Restrictive TDM Clauses	This clause explicitly prohibits text and data mining (TDM) activities, which are crucial for modern research and are often permitted under EU copyright exceptions. Publishers leverage their power to impose these restrictions, threatening to cut off entire campus access based on suspected TDM by a single user, creating a chilling effect on legitimate academic endeavors.
5. Unfavourable Choice-of-Law Clauses	This clause imposes a foreign legal framework that may directly conflict with EU and national copyright laws, particularly concerning research exceptions. It creates significant legal uncertainty for libraries and researchers, who lack the expertise to navigate complex, potentially conflicting legal systems. This can effectively circumvent EU public policies and deny users research rights granted by EU and national laws.
6. Limitations on Authorised Users	This definition is overly restrictive, excluding legitimate users like researchers in joint projects (even within the EU) or students in joint education programs not formally enrolled. It also imposes geographical limitations, hindering remote access, distance learning, and international collaboration, undermining EU initiatives for cross-border cooperation.
7. Broad Liability Clauses	This clause imposes full liability on libraries for the actions of their users, even though institutional liability has traditionally been limited when reasonable preventative measures are taken. Libraries cannot reasonably monitor all user activities, making compliance unattainable and creating significant legal risk for publicly funded institutions, often leading to deadlocks in negotiations.
8. Broad Non-Compliance Penalties	This clause grants publishers unilateral power to determine a breach and impose severe, disproportionate penalties, including immediate termination without refund and denial of all access, even for alleged minor infringements. This creates immense legal and operational risk for libraries and severely weakens their negotiating position.
9. Broad Audit and Inspection Rights	This clause allows publishers extensive on-premise inspection rights based merely on a “good faith belief” of non-compliance. This grants publishers the power to investigate and potentially dictate library practices, interfering with their autonomy and operations beyond reasonable oversight.
10. Restrictive Confidentiality Clauses	These clauses prevent libraries from disclosing crucial information, such as pricing and other terms of access, creating a “data-poor environment.” This lack of transparency hinders information-sharing within the library sector and with policymakers, severely weakening libraries’ ability to collectively negotiate for better terms and conditions.