Re: Haworth Press Journals

Don Berman writes about whether "fair use" can be waived:
>
> 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.

   Good points. The flip side of the argument is this: Could a person    produce a painting and sell it (and the copyright) to a buyer on    condition that the buyer not write anything critical about it? I    use "a painting" as the example because I am imagining a face-to-face    meeting, equal bargaining strength, a single sale.

   I just can't find anything wrong in that scenario. Why should an    artist not be able to impose a condition on a sale? If the buyer    finds the restriction too much to bear, well, the buyer need not buy.    The artist can't make any money without selling the work, so onerous    restrictions on a sale are self-defeating. If the buyer is in the    business of criticizing works, then the buyer will CERTAINLY not buy    under such conditions.

   And if the work isn't sold, then the public has no need of criticism    of the work. Indeed, I suppose that artists who deliberately choose    to keep their work private ("in the privacy of their own home"), have    some sort of right of privacy regarding their creations: public    criticism would imply previous acts of access that would give rise to    an invasion of privacy claim.

   Yet, your argument is persuasive as well. So maybe the difference,    as I have mentioned before, is that what troubles us about the book    scenario is the contract--not the copyright-- issue: when a book is    mass produced, is there really a "contract" between buyer and    publisher? The argument for a real (enforceable) contract seems    fairly weak.

   The other point to make is this: when there is an actual contract,    even when wider publication than a single sale is involved, the    market will almost certainly prevent "no criticism" contracts. That    is, suppose the world were such that an author could say to a    publisher: "I will license my book for your publication, on condition    that you do not criticize it, AND that you impose a similar    restriction on all buyers of the book."

   Suppose further that such a contract were unquestionably legal and    enforceable. Would the publisher agree to such a contract? One's    first thought might be "yes of course!" But what sort of books    succeed without any honest, independent reviews? What would book    sales be for a book that was published under a cloak of secrecy? How    many people would buy a book if there were an enforceable, serious,    contractual restriction that prevented one's discussing the book    critically with one's friends? Such a book would, I suspect, languish    in its author's den, unsold and unread.

   I conlude two things. First, that the offensiveness of a "no criticsm"    contract is not a matter of copyright law and embodies no particular    copyright principle of concern, but rather arises from our sense that    contracts of the kind I just described are in fact not enforceable.

   Second, if such contracts WERE enforceable, all the market incentives    are toward not imposing such contracts anyway, so they would not likely    be a problem.

            --Trotter Hardy

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