From: Sandy Thatcher <[log in to unmask]>
Date: Mon, 13 Apr 2015 20:30:41 -0500

So, let me get this straight: if a library Licensee decides to share
materials it has licensed with another library under an ILL
arrangement that goes beyond what the CONTU guidelines permit on the
grounds that this is fair use, the publisher by virtue of including
this kind of provision has thereby waived any right to contest this as
a breach of contract but must instead go to court to challenge the
activity as fair use?  I can understand how Authorized Users may, as
not direct parties to the Agreement, rely on fair use to justify their
activities, but I'd say publishers are undercutting the real
advantages of having a license by providing an open window for any
Licensee to rely on fair use instead to justify activities that the
publisher may not view as fair use, but has waived its right to
complain about by virtue of such a clause. I can see why Licensees
like this idea because it means they are free to do anything they like
as fair use when the contract contains such open-ended language; it
effectively negates the enforceability of any term of the contract
that the Licensee considers to be restrictive of fair use. Am I
missing something here?

Sandy Thatcher



> From: "Mackinder, Lisa" <[log in to unmask]>
> Date: Mon, 13 Apr 2015 12:21:24 +0000
>
> Another good example is in the Liblicense Model License:
>
>
> 3.3 No Diminution of Rights. Nothing in this Agreement, including but
> not limited to Section 3.2, shall be interpreted to diminish the
> rights and privileges of the Licensee or Authorized Users with respect
> to any of the Licensed Materials, including exceptions or limitations
> to the exclusive rights of copyright owners, such as fair use, under
> Section 107 of the U.S. Copyright Act. In the event that any content
> included in the Licensed Materials is in the public domain or has been
> issued under a Creative Commons or other open license, Licensor shall
> not place access, use or other restrictions on that content beyond
> those found in the open license, where applicable.
>
> This, taken together with a clause stating that any terms posted on
> their platform or in the form of a "click-through" license shall not
> differ from the terms of the agreement, and if they do, the signed
> license agreement prevails, have the effect of nullifying any attempt
> at circumventing Fair Use rights:
>
> d. Online Terms and Conditions. In the event that Licensor requires
> Authorized Users to agree to additional terms relating to the use of
> the Licensed Materials (commonly referred to as "click-through" or
> "clickwrap" licenses), or otherwise attempts to impose terms on
> Authorized Users through online terms and conditions invoked by the
> mere use or viewing of the Licensed Materials, such terms shall not
> materially differ from the provisions of this Agreement. In the event
> of any conflict between the click-through terms or online terms and
> conditions and this Agreement, the terms of this Agreement shall
> prevail. For the avoidance of doubt, Authorized Users are not a party
> to this Agreement.
>
> Hope that helps, Sandy!
>
> Lisa
>
> Lisa Mackinder | Head of Acquisitions and Collections Services
> Alden Library | Ohio University
> 740-593-2707 | [log in to unmask]
>
>
>
> From: Sandy Thatcher <[log in to unmask]>
> Date: Tue, 7 Apr 2015 20:22:38 -0500
>
> Can you cite me an example of such contractual language?  Many
> publishers are still making the mistake of including notices on their
> copyright pages that, if taken literally, would exclude the
> applicability of fair use. That is definitely overreach.
>
> Sandy Thatcher
>
>
>
> From: Ivy Anderson <[log in to unmask]>
> Date: Tue, 7 Apr 2015 23:07:25 +0000
>
> But Sandy, Very many, if not most, licenses do exactly that - uphold
> the applicability of copyright law, including, often explicitly, its
> fair use provisions.
>
> Ivy
>
> Ivy Anderson
> Director of Collections
> California Digital Library
> University of California, Office of the President