Re: Harvard Business Review

["Harper, Georgia K" <gharper@xxxxxxxxxxxxxxxxx>]

Copyright is at its heart an economic statute. It's all about the incentive (a
limited monopoly) society feels we need to provide to authors and distributors
to get them to produce stuff to ultimately create and sustain the public
domain. As an economic statute, it is fundamentally open to contractual
modification. The only things that act as stops to this basic relationship (of
modifiability by contract) are the kinds of things Kat mentions
(non-negotiated contracts are questionable in some jurisdictions (i.e.,
shrink-wraps, click-wraps); unilateral statements of rights like "all rights
reserved" are not enforceable; unconscionable contracts; fraud, etc.). When a
large institution and a publisher, or even a small institution and a publisher
sit down across from each other and negotiate an economic deal (you give me
this and I'll pay you that), they can agree to whatever economic terms they
want. Fair use is not sacred. It can be bought and sold ("How much to take
away your fair use rights?" "Well, how about $200,000?" "No, I don't want them
for that." "How about $20?" "No, not enough..." Well you see where this is
going.)

I provided a Google search that would yield plenty of writing on this subject
for anyone who is interested, in my first response to the inquiry a couple of
days ago.

G




On 12/7/08 11:25 PM, "Kathrine Henderson" <kathrinehenderson@xxxxxxxxx>
wrote:

hmmm, I think that contracts can trump copyright law unless the contract
itself is fraudulent, deceptive or unconscionable. If I have time later in
the
week, I'll see if I can come up with some citations on this issue.

I can see
where you are going with your employment example.  But, I think that
employees
contractually agreeing to the kinds of things that you are suggesting would
fall under an unconscionable contract. Taking this to an extreme, we cannot
enslave people even if they agree to it contractually.

In any case, this
situation certainly begs some questions.  If contract law doesn't trump
copyright, then why is EBSCO including this caveat? How is it that HBR can
make such a demand?  Why aren't other publishers doing the same thing--or are
they doing so in a less visible way?  Why aren't we all posting links to HBR?
My $.02,

Kat



----- Original Message ----
From: John Mitchell
<john@xxxxxxxxxxxxxxxxxx>
To: Kathrine Henderson <kathrinehenderson@xxxxxxxxx>
Cc: digital-copyright@xxxxxxxxxxxxxx
Sent: Sunday, December 7, 2008 9:29:35 PM
Subject: Re: Havard Business Review

Kat, I've never gone so far as to believe
contract trumps copyright. Sure, contracts within the scope of copyright are
fine, but contracts that leverage copyrights into control over uses
specifically excluded from copyright should, at best, be void and
unenforceable as a matter of public policy (and at worst, copyright misuse
and
a Sherman Act violation). A good parallel might be employment law. Employers
have certain rights and employees have certain rights, but we would not
tolerate an employer obtaining contractual agreements from employees, as a
condition of employment, to waive all rights enjoyed by the employee as a
matter of law. Sure, some prospective employees might find it "a better deal"
to waive rights against age, sex, or race discrimination in exchange for a
higher salary, and the "free market" would find that to be just dandy, but
we,
as a society, would not tolerate it.

As a matter of pure copyright law, when
the grant of section 106 rights is made expressly "subject to sections
107-122," those sections would lose much of their value if copyright owners
could license section 106 rights only on condition that the licensee waive
the
limitations in 107-122, don't you think?

John

John T. Mitchell
http://interactionlaw.com

On Dec 6, 2008, at 8:32 PM, Kathrine Henderson
wrote:

> This restriction has been there for more than two years.  I suspect
that the
> publishers are within their rights to restrict usage--contract law
trumps if
> nothing elese, but it seems yet another example of copyright being
out of
> balance.  Ultimately, I think that publishers are going to have to
change
> their business model; but I don't think there's enough pressure in
the
> market.
>
> My $.02,
>
> Kat Henderson




--
Georgia Harper
Scholarly Communications Advisor
University of Texas at Austin Libraries
512.495.4653 (w); 512.971.4325 (cell)
gharper@xxxxxxxxxxxxxxxxx