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Re: Fair Use Assumptions 

Hi from the UK

> 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?

No to the former, yes to the latter. Defining fair use is problematic, my
definition is quite specific - what each relevant state's copyright law
permits. This is important as in the UK fair use of electronic
publications is legally problematic due to transient copies being deemed
copies for legal purposes. 

> 
> 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. 

Agreed.
 
> 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. 


Disagree - if the license is silent then copyright (and other laws) 
apply, just as per any other contract. When buying a car I would use 
the same procedure.  However, due to the debate as to whether fair 
use provisions apply to electronic copies I would try and get this 
written into the contract. 

> 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. 

Absolutely - the message is read the contract carefully or you may 
end up with less rather than more by quibbling!

          Mark Perkins, RRMG Librarian
          ODI Library, Portland House
       Stag Place. London  SW1E 5DP   UK
TEL: +44 (0)171-393-1650 FAX: +44 (0)171-393-1699
          EMAIL: library@odi.org.uk


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