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Copyright & Fair Use: Contract law

Audiovisual Librarian

Profile Photo
Farhad Moshiri
Contact:
Library-Room 205
210-829-3842
Audiovisuals, Copyright, Music, library liaison to the Music Department
Disciplines: Audiovisuals, Copyright, Music

Contract law

Many faculty and students are confused about the differences between copyright law and contract law. Contract law (licensing) covers almost all ongoing subscriptions to journals, databases, ebook collections, streaming video collections, etc. is based on an agreement between the subscriber and the publisher. Publisher's terms of use governs the agreement. Remember:

CONTRACT LAW SUPERSEDES COPYRIGHT LAW

You cannot claim fair use in copyright law when you are using a resource that is governed by the contract law if the publisher states this prohibition in the contract.

You must follow the terms and conditions of the publisher. Read the fine print. Read the terms of use. As soon as you sign the contract or click on "I agree", you are abide by law to follow the terms of agreement.

Let's have an example here: A faculty in a non-profit educational institution borrows a DVD from a library or from a video rental store or has a personal copy of it at home. He/she needs to incorporate a portion of it in his/her course. If the course is a face-to-face physical classroom, the faculty can show the DVD to the class as long as the DVD is legally obtained and it is not a home made copy and it is relevant to the course of study. If the course is an online course, the faculty can play up to 3 minutes of the DVD (captured in streaming format) without the publisher's permission based on fair use (DMCA, Teach ACT). Now, if the video the faculty needs to show is from a streaming video provider such as Netflix, Hulu, Amazon, etc., the faculty has to follow the provider's terms and conditions of use. If the provider states in the terms of use that the videos are for personal and home use only, the faculty cannot show them in class since the contract he/she has signed or agreed to with the provider supersedes the fair use in the copyright law.

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