From: "Shipley, Michele" <[log in to unmask]>
Date: Fri, 17 May 2013 14:15:13 -0400

In the past year both Elsevier and McGraw-Hill have been unwilling to
add language acknowledging fair use to license agreements I've
negotiated for Miner Library. The advice I received from the
University of Rochester's Office of Counsel agreed with what Kevin
says below. In both cases I made sure that all reasonable uses were
included in the license agreement.

Michele

Michele Shipley, MLS
Assistant Director of Digital & Branch Libraries
Edward G. Miner Library
University of Rochester Medical Center
Rochester, NY 14642
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-----Original Message-----
From: Kevin Smith <[log in to unmask]>
Date: Wed, 15 May 2013 11:35:05 +0000

It is absurd to say that no one knows what fair use means.  It is a
well-established limitation on the exclusive rights granted by
copyright with over 150 years of judicial precedent to help us
interpret it.  It is true that reliance on fair use always involves a
judgment call based on the totality of circumstances, but there is
plenty of reliable guidance available, including the ARL code when
properly understood.  There is also a lot of unreliable FUD that is
spread around.

As for the first ridiculous assertion, my experience in direct dealing
with this publisher is that some people in their rights and
permissions department simply don't understand the basics of
copyright, whether through ignorance or willfulness.  Indeed, I once
talked with a person there who did not even grasp the provisions of
their standard authors agreement.  So ridiculous assertions, such as
that fair use only applies to print, are not surprising,
unfortunately.

Finally, if a publisher rejects a fair use clause, but does not, in
the license agreement, positively foreclose fair use, it is still
available.  My approach is to look at the contractual limitations on
use to be sure they are reasonable and restrained.  Generally fair
use, which is the default situation established by federal law, is
still an option; it would require agreement to a pretty specific
repudiation to take fair use off the table.

We simply do not need permission from a rights holder to rely on fair use.

Kevin

Kevin L. Smith, J.D.
Director of Scholarly Communication
Duke University Libraries
Durham, NC 27708