The Fantasy of Fair Use: Preemption
A recent thread on the listserv Liblicense prompted some observations about the utility of fair use in an environment where contracts increasingly govern the legal relationships between creators, copyright owners, and customers. Additionally, these are issues I consistently address in my annual copyright seminar at Syracuse University’s School of Information Studies.
Since the issues are so important in today’s information environment, and since Copycense readers may not subscribe to the Liblicense listserv, I have decided to repost my comments over the next two posts.
The title of the thread is “Fair use / fair dealing – a fantasy?” A complete listing of all the comments in the thread is available from the Liblicense archives. The first issue I addressed in the post concerned the preemption doctrine, particularly the effect of contracts on copyright law provisions. My post follows:
I’ve researched and written about the contract vs. copyright issue quite a bit, particularly as it applies to the limitations that most often apply to information professionals (Sections 110, 109, 108, and 107). The issue concerns state vs. federal law preemption, an issue that simultaneously cuts across the Supremacy Clause in Article VI of the U.S. Constitution, Section 301 of the Copyright Act of 1976, and a raft of cases beginning with Judge Easterbrook’s 1996 opinion in ProCD v. Zeidenberg, 86 F.3d 1447.
“The preemption issue arises when authors’ or users’ copyright rights appear to be either enlarged or reduced by contract (such as in the instant example of a publisher’s contract to publish a journal article). To the general question whether contracts may deal with copyrighted material, the answer is obviously yes. The preemption challenges are more likely to relate to the attempted contractual extension of copyright rights beyond those granted by the Copyright Act, or the reduction of the rights that users have traditionally enjoyed apart from contract. Most cases conclude that as long as the terms of the contract (written under state law) do not occupy the same area as that reserved to copyright law (federal law), then the terms of the contract under state law will be valid and binding.
“Therefore, my understanding of the issue echoes that made by a prior contributor to this thread: the general rule is that once a contract is in place, the terms and conditions of the contract prevail over federal copyright law because a contract is considered to be a private bargain between private actors (whom are presumed to have equal bargaining power to negotiate the terms and conditions of the contract). I am assuming, of course, that the contract is valid under applicable state law.
“The ProCD case (7th Circuit) is cited to often as the prevailing doctrine in this area, but my notes indicate that the Third and Fifth Circuits hold differently. Typically, this is the sort of split that begs for a Supreme Court ruling. I suppose that case is coming soon to a theater near you.
“If we use ProCD as the prevailing doctrine, then one could question whether *any* copyright exceptions (Sections 110, 109, 108, and 107) are preserved in an information landscape awash with digital information. I think we all can reasonably agree that the contract is the dominant legal construct that governs access to and use of digital information. If the ProCD doctrine is the prevailing doctrine, then it seems to me that the only way to preserve any copyright exceptions — including fair use under Section 107 — is to negotiate those exceptions back into the terms and conditions of the contract.
“As that applies to the publishing example mentioned in this thread, this means that an author would have to negotiate each and every exception (or parts thereof) back into a final journal publication contract. Otherwise, there is no guarantee that the author will be able to make use of any of those exceptions; unless specifically negotiated into the publishing contract, we must presume that all of the exceptions under the Copyright Act — including fair use — are off the table.
“This points to the critical importance of contracts in an environment governed by digital information. This also points to the importance of knowing copyright law even within the realm of license or contract negotiation, since you cannot negotiate back into a contract what you do not realize is available under federal copyright law. So, to the extent that one must negotiate a fair use exception back into a state law contract even though it exists as a federal law exception, once could say that fair use (as are most other exceptions) is a fantasy today.
“But even if you know how the game is played, having the leverage to get a publisher to change its contract terms and conditions is a different story altogether.”
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