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Re: Fair Use Assumptions

Forwarded message:
Date: Thu, 23 Jan 1997 23:49:51 -0400
From: Stan Diamond <>
Subject: Re: Fair Use Assumptions

Not a lawyer, but agree with Ann that a license or contract can allow more
or less than fairuse and copyright themselves allow. With regard to Tony's
statement about sinister meanings... I think there is some  truth to that
fear. Witness the goings on recently at the WIPO hearings where the
Database publishing community did their best to remove the concept of
fairuse from this important international treaty. It was only through the
vigilance and combatativeness (is that a word???) of the defenders of fair
use that the move was defeated.

>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?

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