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RE: OA Mandates, Embargoes, and the "Fair Use" Button

I agree with Rick 100%. Stevan may be misled by the common practice of referring to "fair use" as a "right." In fact, under U.S. law it is a statutorily created defense against an allegation of infringement and has no basis as any kind of "natural right" outside of the law. Hence a contract can be written to exclude activities that might normally be interpreted as "fair use" outside the bounds of the agreement. Don't librarians complain often about contracts they are asked to sign that take away "fair use" privileges? Rick is right: you can't sign a license granting all rights to a publisher and then have any legal basis for claiming that you still have some residual "fair use" rights.

The scenario that Stevan depicted, however, would probably qualify as "fair use" if the person who sent the article by e-mail to his colleague was NOT the author but rather any professor who was engaged in communicating with that colleague for research purposes because that person would not be bound by the terms of the author's contract with the publisher and could freely exercise the kind of "fair use" right sanctioned by section 107 of the law. There might be some contractual difficulty if the source of that article was an electronic database of articles licensed by the person's university library under terms that would rule out such dissemination, but it would be the library's legal problem, not that of the person who forwarded the article. I would qualify this comment by saying that this would be "fair use"only if the person doing the transmitting did not systematically forward articles from the same journal to the same colleague, thereby in essence substituting for the need for that second person to have access to a subscription to the journal.

> You may consult with copyright lawyers if you wish. Fair use is
 not a right that a copyright transfer agreement can take away
 from anyone, especially the author!
Not to pick on you, Stevan, but this is a point that should be clarified: like many legal rights, fair use rights most certainly can be waived as a matter of contractual agreement. If you sign a contract that says you will not redistribute even single copies of the work in question, then you'll be legally bound to abide by it. (It would be silly to agree to such a term, but that doesn't make it legally unconscionable.) Legal rights don't trump contractual obligations -- in fact, exactly the opposite is true. The whole purpose of a contract is to define mutual rights and obligations that are not otherwise granted or required as a matter of law.

Rick Anderson
Dir. of Resource Acquisition
Univ. of Nevada, Reno Libraries