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

[sgt3@psu.edu]

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
> rickand@unr.edu