COPYRIGHT-L Archives

Archiver > COPYRIGHT > 2002-09 > 1031965924


From: "Robert W Fay" <>
Subject: Re: [COPYRIGHT] Is posting a form of publishing?
Date: Fri, 13 Sep 2002 20:12:04 -0500
References: <3D822787.5129.5282CD@localhost>
In-Reply-To: <5.1.0.14.0.20020913201944.00ab22f0@pop3.norton.antivirus>


On 13 Sep 2002 at 20:28, Pat Asher wrote:
> I'm not a lawyer, but if you ask your lawyer friends, I think they
> will tell you that a contract provision that is written in violation
> of law is not enforceable.

Hi Pat,

Yes, of course that is true. But it makes no difference as there is
no law being violated. That is to say, just because a work is out of
copyright, there is no law imposing a positive obligation on the part
of the owner of a copy of that work to distribute a copy of it for
free, for charge or at all.

Contracts such as this are not for use of a copyrighted work. They
are for access to a rare or hard to find document or work. If you
agree to the terms of the access contract then you are bound to
them. If you violate them, then that is breach of contract and you
are subject to action.

Perhaps contracts to license a copyrighted work are causing
confusion. Of course you can't license a work that is in the public
domain because there is no copyright. But you certainly can contract
for access to the work. Obviously that is only practicable when the
work is rare or difficult to get.

Whether one views the terms of the contract as good, bad or
indifferent, the simple fact is that its an issue of contract law,
not copyright law.

Bob Fay


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