RE: Haworth Press Journals

From: <CNICOPY[_at_]charlie.usd.edu>
Date: Wed, 13 Apr 1994 15:17:55 -0500 (CDT)

I'm not sure I read section 108(f)(4) quite the same way that Lolly does. It says "Nothing in THIS SECTION ... in any way affects the right of fair use ... or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections." To me, this clause says that 108 rights can be altered by contract but does not necessarily imply that other rights in other limitation sections can be waived by contract. In addition, the fact that 108 has a clause specifically stating that rights granted under this section are waiveable by contract, and sections 109 and 117 use language which grants rights only to owners of copies (implying that the rights can contractually be changed by avoiding a sale), has always seemed to me to lead to a sort of negative implication that the rights granted by other sections such as 107 and 110 may not be waived by contract. Congress was not by any means clear on this point, so we cannot be sure. However, at the very least, it would seem to me that if Congress did things with the wording to make it clear that some sections could be altered by contract but did not use similar language in other sections, then it must at least be harder to alter the balances struck by the other sections. That would tend to indicate that at a minimum it should be difficult to eliminate fair use rights which might mean that unilateral statements printed in the front of particular works would be ineffective. This may be consistent with what Lolly is saying, but I'm not entirely sure.

---

Mary Brandt Jensen

Director of the Law Library   	   I own the copyright in all of my original
Professor of Law                   writings, including messages to lists.
University of South Dakota         Unless otherwise noted, I grant permission
School of Law			   for all of my postings to this list to be
414 E. Clark St.		   forwarded to other lists and freely 
Vermillion, SD 57069-2390	   circulated on the nets.  I nearly always 
(605) 677 6363			   grant permission for non commercial uses 
(605) 677 6357 fax		   of any of my writings upon request.

CNICOPY[_at_]CHARLIE.USD.EDU

---

>Howard,
> 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.
Received on Wed Apr 13 1994 - 20:24:59 GMT