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