Date: Sun, 12 Apr 2015 20:02:56 +0000

Our general counsel would agree with Kevin - fair use and other aspects of copyright law are available to us as a matter of law, as long as another country's copyright law isn't invoked to govern the license.  And since our university will not agree to the application of foreign laws (if there is a dispute on this point, we'll fall back to remaining silent), we are confident that fair use and other provisions of copyright law apply.

Nonetheless, we do normally include explicit language on this point, to avoid unnecessary disputes later down the road.  To answer Sandy's earlier question about examples, one example would be the language in CDL's long-standing model agreement, which is used in many of our licenses:

         "Licensee and Authorized Users may make all use of the Licensed Materials as is consistent with the Fair Use Provisions of United States and international copyright laws"

Many of our providers have agreed to this or similar language.

We'll be updating this in future to more closely follow the newer LibLicense model language:

        " Nothing in this Agreement [...] 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."

Ivy

Ivy Anderson
Director of Collections
California Digital Library
University of California, Office of the President

-----Original Message-----

From: Kevin Smith <[log in to unmask]>
Date: Fri, 10 Apr 2015 00:31:16 +0000

I think it is important to say -- and I should have said this in the beginning -- that libraries do not need contracts that explicitly affirm fair use, or fair dealing.  Those provisions are rights granted by statute; they are not dependent on contractual acknowledgement by publishers.  We have those rights until and unless we give them away, so we need to be careful about contractual language that attempt to define authorized uses as exclusive.  And presumably it is this sort of definition that the UK provision about the copyright exceptions preempting contractual waivers is designed to prevent.  But it is a red herring to argue about explicit affirmations about fair use, or to complain that fair use is too unclear.  It is the law -- with a statutory definition and 170 years of jurisprudence behind it -- and it applies in all cases where it is not surrendered by contract.  As does fair dealing, in Britain.  It simply is not a matter of interpreting contracts or being concerned about where the agreement was written.  Publishers do not give us fair use; we just need to be certain that they do not try to take it away from libraries or the citizens who use them.

Kevin


Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communications Duke University Libraries



> On Apr 9, 2015, at 7:45 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> 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/f
> ile/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