RE: Fair use / fair dealing - a fantasy?

["Sally Morris \(Morris Associates\)" <sally@morris-assocs.demon.co.uk>]

I'm not so familiar with US law, but certainly in the UK 'fair 
dealing' (our slightly less extensive counterpart to Fair Use) is 
certainly not a right. It is a defence against accusations of 
infringement (but the infringement has to pass all the necessary 
tests, including the over-arching Berne 3-step test)

Fair Use/Fair Dealing has never been an author's right - author 
agreements therefore have no bearing on it.

Thus 'Fair Use' seems to me a very misleading name for the 'button'

Sally

PS - I am not a lawyer!

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Peggy Hoon
Sent: 09 June 2007 10:42
To: liblicense-l@lists.yale.edu
Subject: Re: Fair use / fair dealing - a fantasy?

I am a lawyer.  There are a number of elements that must be met 
before a contract is enforceable.  Certainly if an individual 
understands that they are signing away all the rights I 
previously enumerated, the contract would likely be enforceable. 
I should also add that I do agree with Mr. Thatcher that fair use 
is a right, and not a defense.  Peggy Hoon

On Jun 7, 2007, at 4:34 PM, Paul N. Courant wrote:
> 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