Re: RE: Haworth Press Journals

> Regarding your question concerning limiting fair use
> rights by contract. Section 108(f)(4) of the Act, con-
> tains a statement that "nothing limits the right of fair
> use or any contractual obligation assumed by the library
> at any time when it obtained a work for its collection."
> My long-term assumption was that for libraries general
> fair use rights were available but if the library had
> signed a contract or license agreement to the effect that
> it would not duplicate certain works in the collection.
> More publishers seem to be going to this type of
> license agreement; Dun & Bradstreet has long had this
> kind of restriction on its printed materials, but it is
> a signed license.
> While section 108 applies only to libraries and archives,
> it seems to me that subsection (f)(4) makes it clear that
> by contract a library can alter what would be basic fair
> use.
> This is limited to libraries, so perhaps the same
> ability to limit fair use rights does not exist for
> other parts of the Act.
> What do others think?
> Lolly Gasaway, Director of the Law Library & Professor
> of Law, University of North Carolina.

Lolly,

  I guess I have always read this section a little differently. Specifically, I have always read it disjunctively. The section actually reads:

	Nothing _in this section_--
	in any way affects the right of fair use as provided 
	by section 107, or any contractual obligation assumed 
	... when it obtained a copy ...

To me the phrase "in this section" makes it clear that fair use is not changed by the existence of section 108, but says nothing about whether or not it can be affected by contract.

And the insertion of the comma between the clauses makes it clear that the second clause does not create a possibility of negating fair use by contract but simply says that _section 108_ (not 107) does not affect any contractual obligations assumed at the time of sale.

As a result, I tend to side with those that think you cannot, by contract, waive fair use as a defense _in an infringement case_.

Of course, if you signed a contract that says you will not copy, then I think you may have a breach of contract rather than an infringement case and fair use is no defense there.

If my analysis is wrong, however, then your statement prompts another issue. If the library may waive _its_ fair use rights, I presume that it does not thereby waive the fair use rights of its users. I.e., if your analysis is correct, the library may not be able to copy under fair use, but the library users can still go to the "unsupervised reproducting equipment" (108(f)(1)) on the premises and make a fair use copy. Right? If this is correct, has Dun & Bradstreet gained as much as they think they have?

Bob

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