From: Sandy Thatcher <[log in to unmask]>
Date: Wed, 8 Apr 2015 19:37:29 -0500

Since British "fair dealing" differs from "fair use" in the US,
presumably contracts from British publishers referring to copyright
law would have to be interpreted according to British law. The new
revision of UK law makes it explicit that photocopying for student use
in the classroom requires a license:

> The new law does not remove the need for educational establishments to
> hold licences for use that does not fall under the "fair dealing" exception,
> for instance, photocopying material to distribute to students.  Schools,
> colleges and universities still have to pay for third party teaching materials
> which are available under licence

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/375951/Education_and_Teaching.pdf

Obviously, the GSU suit signifies that at least some US universities
do not believe they need to have licenses to copy materials for
classroom use, at least via e-reserves such as GSU set up.

So, how would a US university interpret a British contract that
referred to copyright exceptions?  Wouldn't they have to know British
law? And for contracts with publishers in other countries, the same?
How helpful is that, compared with very specific contract language?

Sandy Thatcher




> 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