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Fair Use Assumptions

Tony Ferguson (Columbia University wrote:

>I think we need to assume that the publisher also knows about "fair use"   
>and proceed with that in mind.  If we assume they don't believe in        
>"fair use" we have to read sinister meanings into everything and do       
>combat with them -- a very time-consuming activity.  Maybe I am too       
>naive.  tony                                                             

What assumptions do liblicense-l readers have about this matter?  Do
you share Tony Ferguson's view that if a license does not seem to
permit fair use, or is silent on the subject (two different matters
entirely, perhaps), fair use is nonetheless permitted?

I take the following conservative positions; are they too cautious?

1.  If the license language says that copying or downloading is not
permitted then I believe that is precisely what the licensor intends.  We
will not sign without changing the language.  One could say that such a
license is invalid because it is illegal not to permit fair use, but I
believe one would be wrong to say that.  A license trumps copyright law. 

2.  If the license language is silent on matters that would fall within
the "fair use" umbrella, I nonethless try to confirm with the publisher
that fair use is permitted and to add it to the language.  Some attorneys
have told me that we probably do not need to do this; that fair use in
such a case is probably implicit or should be.  My own (cautious) view is
that if fair use is permitted then we can ask the licensee to say so in
the license. 

In summary, if we agree to something via license (contract) that is *less*
than what copyright (or fair use/fair dealing) allows, then we have to
live by that contract. It can work the other way:  some of our licenses
offer more than copyright does (unlimited classroom use, coursepacks, for
example).  Whatever the deal we agree to, is the deal we get. 

Anyone out there agree or disagree with any of this?  Lawyers?

Ann Okerson
Associate University Librarian
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