From: Susan Lafferty <[log in to unmask]>
Date: Fri, 21 Apr 2017 06:45:10 +0000

Hi Mark,

It’s interesting to see the foot on the other boot.  In Australia many
of us dream of having fair use exceptions to copyright infringement
because Fair Use is more liberal than the prescriptive Fair Dealing
exceptions our copyright legislation currently saddles us with.

I would suggest you simply quote the relevant Section/s of the US
Copyright Act – Section 107 (??)– rather than trying to come up with
your own definition that you might then be held to, contractually, at
a later date.

One of the things the Australian Productivity Commission liked about
Fair Use, is that it is open ended and principles-based, rather than
prescriptive.  It is also flexible enough to allow for new
technologies.

The Australian Law Reform Commission set out a number of points
defining Fair Use – in making the case for a Fair Use exception.  Some
of this might be helpful.
https://www.alrc.gov.au/publications/4-case-fair-use-australia/what-fair-use
. This definition also quotes Section 107 of the US Copyright Act – in
particular the four Fair Use factors to be taken into account when
determining whether a use is Fair Use.

Stanford University Libraries also have a definition:
http://fairuse.stanford.edu/overview/fair-use/ and subsequent pages.

Regards

Susan

Susan Lafferty
Associate Library Director (Resources and Access)
Australian Catholic University

Room 533.8.10, Caroline Chisholm House, 33 Berry Street,  North Sydney, NSW 2060
PO Box 968, North Sydney NSW 2059
E : [log in to unmask]  W : www.acu.edu.au

-----Original Message-----
From: Mark Winek <[log in to unmask]>
Date: Thu, 20 Apr 2017 15:57:13 -0400

All,

In the course of acquiring an e-book package from a non-U.S. vendor, I
negotiated in a number of changes (I would say "improvements") to the
license agreement. This includes a clause indicating that nothing in
the agreement should be interpreted to diminish the licensee's or
authorized user's rights under the Fair Use provisions of U.S.
copyright law.

Rather than simply striking this proposal, the vendor has simply
requested a "clear and short definition" of Fair Use. Obviously, I
want to provide a truthful answer, but also one that won't get so
convoluted as to scare them away from including it in the executed
license.

Has anyone encountered this before? How did you respond?

Thanks in advance for any guidance.

Best,
Mark Winek
Georgetown University Library