RE: Haworth Press Journals

Glenn Tenney <tenney[_at_]netcom.com> writes:
>
> At 7:37 PM 3/31/94 -0500, LURIE[_at_]UCIS.VILL.EDU wrote:
> >A publisher cannot limit your fair use rights by a notice in the
> >publication.
>
> But what if the publisher required a signed contract of these terms prior
> to selling you the book? I understand that some publishers ARE already
> using contracts with terms requiring that the library will not allow the
> book to be checked out.

These comments raise an interesting question: if a publisher cannot limit fair use rights by notice in the publication, is that because of a copyright doctrine, or a contract doctrine? If a copyright doctrine, the rationale would be, I suppose, that the Act gives certain rights to users and any contract attempt to limit them would be struck down on preemption grounds.

If a contract doctrine, the rationale would be that a notice in the publication was not effective: either it's a contract of adhesion or there's no meeting of the minds, or something similar.

If the contract doctrine is what is operational, then the two fact situations above are consistent: a notice in a publication may not create an enforceable contract, but a face-to-face purchase of materials from a publisher who asks for particular terms in a real contract would create an enforceable bargain because it would be an actual "bargain."

If the rationale for a notice about fair use not being effective is a copyright doctrine, then it seems that the two situations are not consistent (publishers should not be able to limit uses of books they sell). A copyright rationale would also seem to be inconsistent with the general idea of copyright, which is to create certain rights presumptively in one party (or the other), rights that can then be waived or sold as their owner chooses. Fair use in this sense is a kind of "right" in the user or buyer of copyrighted materials; why should the owner of such a right not have the option to waive or sell it?

            --Trotter Hardy

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