From: Kevin Smith <[log in to unmask]>
Date: Wed, 8 Apr 2015 12:09:34 +0000

I think Winston's comment was not fully understood.  He is talking
about a legal provision, such as recently adopted in the U.K., that
says that contract terms that attempt to override user rights granted
in the copyright statute would be considered invalid.  In other words,
it would be legally impossible (or at least difficult) for libraries
to sign away fair use rights, as well as other limitations and
exceptions.  So it would not be a matter for a publisher or their
lawyers to decide about; it would be a provision of the statutory law.
As Ivy says, many publishers already include an acknowledgement of
fair use in their database contracts, although I think we are seeing
the beginnings of a retreat from that position in the wake of the GSU
debacle.

As Winston said, a call for this kind of provision is included in the
treaty on limitations and exceptions for libraries that is before the
WIPO for consideration.  And it has been implemented in Britain.  The
goal, arguably, is to preserve the balance in copyright that is
enacted as a matter of public policy in the law.

Kevin

Kevin L. Smith
Director, Copyright & Scholarly Communication
Duke University Libraries