Re: Fair use (RE: electronic journals CCC)

["John Cox" <John.E.Cox@btinternet.com>]

Contracts are always written not only to provide for the rights and
obligations of the parties but also to set the limits to the activity
envisioned by the parties.  Most of the words of any contract are
concerned with what happens if things go wrong.

The debate over ILL rights over the past few days has displayed both great
ignorance of the purpose of clauses in a contract and their
enforceability, and a wider ignorance of the law.  Merely because
right-thinking citizens will not commit murder is not a reason for the law
to be silent.  Merely because librarians are impeccable copyright citizens
- my publishing career has confirmed this - is not a reason for forgetting
to delineate the boundaries to the rights granted under the license.  It
makes no sense not to be detailed and specific; in that way, both
publishers and librarians have to think carefully about what rights and
obligations are acceptable, and then negotiate about them.  If you do not
like a term of a license, make the case - be specific, provide reasons,
put it in writing, and point out to the publisher who is the customer with
the money.  It is not sufficient to whinge on a community listserv.

In relation specifically to ILL, most significant publishers allow the use
of ILL files to print out copies for onward transmission to the receiving
library by mail or fax (including Ariel).  There are some that don't, but
they need to be educated!

Oh, and that point about the Alabama case on sharing the lottery winnings.
Wagering contracts (i.e. agreements based on bets or on gambling) are not
enforceable at law.  Nothing to do with contracts overriding statutes.  
It is a common law rule.  In the case of copyright law, the law grants the
owner a property right that can be traded.  Fair use represents an
exception to that ownership.  Copyright is the right to say 'no'.  A
license is the copyright owner saying 'yes' in certain defined
circumstances.  Such a contract does override fair use, unless it also
provides that nothing should be interpreted as denying such rights to
users.

Wise publishers do not seek to stop librarians from exercising their fair
use rights in relation to the electronic files.  Most are wise, and
getting more so.  When you encounter stupidity, simply ask the publisher
to look at what the majority are doing, and explain what you want.  One
simple example: many publishers do not understand what is meant by
"electronic reserve" - so explain it to them.

John Cox
John Cox Associates
E-mail: John.E.Cox@btinternet.com

-----Original Message-----
From: Tom Williams <twilliam@bbl.usouthal.edu>
To: liblicense-l@lists.yale.edu <liblicense-l@lists.yale.edu>
Date: 11 May 2001 6:30 am
Subject: RE: Fair use (RE: electronic journals CCC)

>On Wed, 9 May 2001, Rick Anderson wrote:
>
>>According to the restrictions many publishers
>>want in place, we CANNOT print off a copy of that article from the
>>online version.  We have to go to the stacks, pull the hardcopy, copy
>>it, and then send/fax.  In many cases the copies look exactly the same,
>>thanks to pdf files and no-one can really tell the difference.  So why
>>make such a fuss?  Makes no sense.
>
>See, this is the thing: I think it does make sense because it's vastly
>easier to redistribute an e-mail message than it is to redistribute a
>physical copy.  Yes, it's certainly possible to scan a physical copy and
>redistribute it electronically, but forwarding an e-mail message is 
>easier by orders of magnitude.

But making rules based on the expectation of illegal actions serves little
purpose as a person inclined to cheat will do so anyway.  It's only the
people trying to do everything legally who get inconvenienced.

>>As currently written and as I, and many others, understand them, the u.s.
>>copyright laws, including fair use, make no distinction between print,
>>online, or any other format of material - they even include phonorecords
>>in the law.  What the publishers are now trying to do is to circumvent
>>the fair use laws by claiming that online journals are exempt from some
>>ofthose laws.
>
>No, they're not.  What they're doing is writing licenses that proscribe
>behaviors that would otherwise be legal.  There's nothing wrong with this;
>in fact, all of us submit to such contracts all the time.  (There's no
>law, for example, that tells me what color of shirt to wear.  But if I go
>to work for a company and sign a contract saying I'll wear a red shirt on
>the job, I'm legally bound to do so.)
>
Yes, but there's no law that says a business can dictate what people
should wear to work.  There IS a law that says how copyrighted material
can be used.

>>The copyright laws at this point do NOT reflect that view.
>>We should not sign contract which remove fair use rights as provided in
>>the law.  Do these publisher licenses supercede the law?
>
> Sort of, yes.  See above.

I think not.  Individual contracts which are at variance with the law will
almost certainly not hold up in the courts.  Take the case we had recently
here in Alabama where someone gave workers at a restaurant lottery
tickets.  The agreement or contract was that if anyone won, the winnings
would be shared.  When one person won, she refused to share and was sued
by the others.  The local courts agreed with the others and ordered that
they share equally.  However, upon appeal, the state supreme court held
that although they agreed that a contract to share was in effect, since
gambling was illegal in Alabama (it was a florida ticket) the terms of the
contract could not be upheld since it was at variance with state law.  In
our case, fair use says we can make copies even of the electronic
material.  A vendor's contract forbidding it is not legal, I believe, and
I can't wait until this issue hits the courts - and it will.  Fair use is
the law of the land, while vendors' contracts are just self-serving
attempts to control distribution or whatever.  However, these contracts
cannot circumvent existing law.

Until the next volley...

Thomas L. Williams, AHIP
Director, Biomedical Libraries and
Media Production Services
University of South Alabama
College of Medicine
Mobile, Al 36688-0002
twilliam@bbl.usouthal.edu