Re: copyright & fair use

>Buford Terrell writes:
>
>> But Purchasing a book with a limitation on fair use printed on the
>> title page is exactly one of those situations "in which contractual
>> agreements are difficult or expensive to reach". The routine purchase
>> of a commodity item like a book is the paradigmatic example of an
>> adhesive contract. Even for large libraries with, arguably, some
>> bargaining clout, negotiatiion with each publisher is economically
>> unrealistic.
>
>
>Book purchases may well be such a situation, more clearly so
>with regard to individuals than libraries, but still possibly
>so with libraries. (I mean, a situation in which contracts are
>difficult or expensive, etc.). I was only saying that this is
>a matter is which contrat principles ought to apply, not what
>some folks are arguing as copyright principles. When contract
>principles apply, some contracts will not be upheld. But
>others will be. THe difference is in such things as coercion,
>duress, bargaining strength, etc. (I don't happen to think
>that unequal bargaining strength and unconscionability are
>strong arguments against contract enforcement, but for the
>moment I accept them as relevant to the issue of contract
>validity as well.)
>
>The key point here is to ask what happens in situations in
>which there are *no* contract failures: when bargains are made
>with equality, fairness, eyes open, arms' length, for adequate
>consideration, etc. etc. If you think that fair use rights are
>subject to contract law, and hence can be bargained away (as I
>do), then you will conclude that in this sort of situation,
>there is nothing offensive about bargaining away fair use
>rights. If you believe that fair use rights embody a copyright
>principle, you may conclude (as doubtless many do) that even in
>these arms' length transactions, fair use cannot be bargained
>away.
>
>I believe both that fair use can be bargained away--at least in
>the circumstances I've described--and that permitting such
>bargains is advantageous and hence *should* be allowed.
>Essentially, the reason I think that is that all uses of
>copyrighted works, just like all transactions, reflect a balance
>of interests and values and desires. THe balance will differ
>wildly from use to use, from person to person, from work to
>work. Treating fair use as a principle of copyright law is in
>effect treating it as the result of a Congressional balancing of
>interests. Congress is in no position to assess on any kind of
>individualized basis the astonishing variety of commercial
>transactions that relate to copyrights. Hence any kind of
>Congressional balancing of rights is likely to be wrong (i.e.,
>less than optimal) for most transactions.
>
>In contrast, treating fair use as subject to contractual
>restrictions is in essence treating it as subject to balancing
>by individuals, in individual transactions. Such decentralized
>balances are much more likely to be satisfactory than
>Congressional balances because they *will* reflect all the
>variety inherent in such transactions.
>
>
> --Trotter Hardy

In what circumstances will copyright transactions be fully bargained for? Trotter (I think, otherwise apologies) distinguished between purchase of a book and purchase of an oil painting. Interestingly, VARA, which creates other creator rights that survive the artist's sales contract, makes this same distinction -- individual or limitedseries  works as opposed to mass-produced works. Sales of one-of-a- kind art will frequently include terms allowing the artist to borrow the work for inclusion in shows, agreement by the purchaser to lend the work for some museum showings, availability of the work to critics, and so forth. Interestingly, almost all of these contracts INCREASE public access to the works, not limit it. Most of these contracts, however, do not convey the copyright, only property in the particular copy.

Treating fair use as a statutory limitation on the copyright itself, and therefore preempted from state contract law would seem the better interpretation, encouraging wider dissemination of the work and still enabling the creator to obtain a fair reward. Unbargained for limitations on fair use of commodity products would seem to aid neither the creator nor the public, but only to increase the rents for middlemen.

Buford Terrell
<terrell[_at_]sugar.neosoft.com> Received on Sat Apr 23 1994 - 16:18:32 GMT