Re: Fair use / fair dealing - a fantasy?

["Paul N. Courant" <pnc@umich.edu>]

I'm not a lawyer, but my understanding is that contracts trump 
law.  There are certain rights you can't sign away by contract - 
you can't sell yourself into slavery, for example - but you can 
certainly sign away your rights to many things that would 
otherwise be lawful if you had not signed a contract. Fair use 
claims are plausibly on the list.  Thus, I think that Sandy is 
exactly right on this point.

I also note that the fact that something is ludicrous is hardly a 
proof that it doesn't exist.  This is especially so with respect 
to intellectual property law.

-------------------------
Paul N. Courant
University Librarian and Dean of Libraries
Harold T. Shapiro Collegiate Professor
    of Public Policy
Professor of Economics and of Information
The University of Michigan


On 6/6/07 2:42 PM, "Sandy Thatcher" <sgt3@psu.edu> wrote:

>>>Sandy Thatcher wrote:  Most journal contracts I am familiar 
>>>with specify the transfer of "all rights." Such a transfer 
>>>means what it says, quite literally, and it is entirely 
>>>unnecessary therefore to include any specific waiver of fair 
>>>use rights. The very act of transferring all rights 
>>>effectively accomplishes that, and nothing more needs to be 
>>>added.  Full post at: 
>>>http://www.library.yale.edu/~llicense/ListArchives/0706/msg00001.html
>>>
>>>If this were true, then for such works there is no fair use /
>>>fair dealing - and never was!  This is ludicrous!
>
> The conclusion doesn't follow: such a contract overrides any 
> "fair use" rights of the author signing the contract, but does 
> NOT eliminate anyone else from making "fair use" of the 
> author's essay. Anyone who thinks that an author signing an 
> "all rights" transfer has any residual "fair use" rights better 
> consult a lawyer before acting on them. As I said earlier, 
> since "fair use" is at best a very ambiguous guide to what one 
> can do in any given set of circumstances, publishers would be 
> crazy to let authors apply any interpretation of that concept 
> they wished because some would no doubt feel that "fair use" 
> gives them the right to distribute the final version of their 
> article to every one of their research colleagues throughout 
> the world through listservs and the like.
>>>
>>>Publisher/author agreements vary a great deal with respect to
>>>transfer of rights.  Agreements that give publishers rights to
>>>publish, first publication, and often redistribution, but leave
>>>all other rights in the hands of authors, are now common, as is
>>>the use of Creative Commons licensing.
>
> Signing an agreement that transfers "all rights" does NOT mean 
> that authors are not allowed to do all sorts of things under 
> the agreement, including republishing the article in later work 
> by the author, posting some form of it in an institutional 
> repository, etc. I would bet that most journal contracts still 
> proceed by having the author transfer all rights, with the 
> contract then stipulating what range of activities the author 
> may legitimately pursue under the terms of the agreement. At 
> Penn State our policy does allow authors to post their 
> peer-reviewed (but pre-copyedited)articles on their own web 
> sites or their institution's, with no delay after publication, 
> thus qualifying us as a Green OA publisher, I suppose.
>>>
>>>Authors with options for quality publishing are well advised 
>>>to seek the publication route that leaves them their rights. 
>>>No wonder submissions at Hindawi are rising!
>
> Authors certainly should read contracts carefully and shop around if
> they think there are viable alternatives that give them more of what
> they feel they need. Hindawi is attractive, I suppose, because of its
> Gold OA approach, which is fine as long as the money to support the
> cost of publishing comes from somewhere.
>
>>>Any opinion expressed in this e-mail is that of the author alone,
>>>and does not represent the opinion or policy of BC Electronic
>>>Library Network or Simon Fraser University Library.
>>>
>>>Heather Morrison, MLIS
> --
> Sanford G. Thatcher, Director
> Penn State University Press
> University Park, PA 16802-1003
> e-mail: sgt3@psu.edu