Re: Haworth Press Journals

Trotter Hardy writes:
>
> Don Berman writes:
> >
> > As to fair use I believe that it is preempted and that state contract
> > law can not alter what 107 provides.
>
> Section 106 provides all sorts of exclusive rights to the
> copyright owner, but it still allows state contract law to
> shift ownership to one other than the original author. Why
> would the same thing not work with fair use? I.e., if an
> author can sell a copyright, why cannot a user sell a fair use
> right?

Let me first give the simple minded answer - Sec. 106 begins "Subject to sections 107 through 120.." In short Sec. 106 envisages the right of the owner to contract but then explicitly limits it. The language of 108(f) is Nothing in this section-(4) in any way effects the right of fair use as provided in by section 107.

Thus it seems that the statutory structure suggests a difference. But I don't think one should rely on this.

I happen to believe that "fair use" is built into the nature of the beast - that the right to the benefits of copyright were given on conditions - and one of those conditions is fair use. Without getting into an extended discussion which we have had before on this list I don't think one can have a system of copyright without the right of fair use - some countries call it something else but they have a similar doctrine (though not quite as pervasive). In this country the absence of a fair use doctrine that could not be waived I believe would upset the delicate balance between the right of copyright and the First amendment. I find it difficult to justify a doctrine that would allow a publisher to sell a book on the condition that one could not quote from the book in a review unless the review was deemed favorable by the publisher of the book.

  Don Berman --  

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