RE: Haworth Press Journals

> 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

The general idea of copyright, as expressed in the Constitution, is to encourage the useful arts and sciences. Congress has chosen to view the creation of unwaivable fair use rights as a means of assuring that the public has the right to certain types of information as against the otherwise valid proprietor of the means of its expression. The property right created by patents, copyrights and trademarks is purely incidental to the constitutional intention, and is merely the means to an end. Congress can limit it any way it wants. Seems perfectly reasonable to me as a policy matter.

Vance R. Koven
Attorney at law
Boston, MA
(koven[_at_]umbsky.cc.umb.edu) Received on Wed Apr 06 1994 - 19:13:13 GMT