RE: Haworth Press Journals

> > 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

Seth Greenstein replies:

> The problem with this construct is that the "option" may not be
> susceptible to the kind of reasonable bargaining your argument
> presumes.
>
> Apply this "option" to the NII. "Digital public libraries" are no longer
> subject to fair use under this concept. The user pays one fee for access.
> The user pays another fee for copying, depending upon the amount used.
> This replaces fair use with unit pricing. It gives the copyright holder
> the right to decide whether true, "free" fair use can occur at all. Under
> these circumstances, technology not only outpaces copyright law, it
> negates it.

I think the issue here is again, whether limits on fair use are analyzed as contract failures or as part of the substance of copyright law. One view of fair use (law professor Wendy Gordon's; I agree with it) is that fair use is designed for situations in which the cost of transacting over a use is greater than the value of the use, and the public would derive some sort of benefit by the use. (Apologies if I am misstating the concept here; I should say that this is my own current understanding, not Wendy Gordon's).

Viewed in this light, fair use is just a way of overcoming a few situations of high transaction costs. The situation of digital libraries is one in which the salient feature is that transaction costs are low: the parties are already in a bargaining relationship. When the parties can bargain at low cost, there is no reason not to let them do so (absent of course fraud, duress, etc.--but these are contract doctrines). Hence there is nothing remarkable or objectionable about a publisher/library or whatever limiting the use that can be made of materials. I would not say that this negates copyright law, any more than the author of a novel's licensing its use to a publisher negates copyright law. It seems consistent with the way copyright is supposed to work.

When you say that the matter may not be one susceptible of reasonable bargaining, then maybe what you're saying is that there is no meeting of the minds, or there is unequal bargaining strength, or unconscionability, or something like that. Arguing for an unwaivable fair use right in this case is then a matter of contract principles more than fair use. And if the contract principles apply, then we don't really have a conflict over *copyright* doctrine as such.

        --Trotter Hardy

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