Re: Haworth Press Journals

Jeff Jernegan writes:
>
> On Tue, 19 Apr 1994, Donald Berman wrote:
> >
> > 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.
>
> How do we reconcile this with the practice of CD-ROM software vendors
> who by contract make it unlawful to copy the non-copyrightable portions
> of the text they are incorporating, except for limited purposes. It is
> quite prevalent in the legal CD-ROM field, where the text of court
> opinions or state statutes that are not themselves copyrightable are
> indexed (but not modified) with a copyrighted software, and the contract
> permitting use of the (properly protectable) software prohibits copying
> of the unmodified non-copyrightable data.

The CD rom issue deals with the question of whether the material is copyrightable in the first place. Fair use arises when one concedes that the material is copyrightable but limits exists on the holder of the copyright (or a right in the hands of a person seeking to copy a copyrighted work). For whatever its worth I believe that neither West nor Lexis (or any other publisher for that matter) should be able to claim any copyright in cases, statutes, etc. I would even reverse cases holding that West has rights to its pagination. The Supreme Court has yet to consider these cases but the Feist decision holds out some hope that CD and other electronic vendors can not limit copying in the manner you described. HOwever, there must exist a class of litigants willing to spend a considerable amount of money to contest these cases.

  Don Berman --  

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