[Web4lib] Nature copyright clause (was Wikipedia vs. Britannica)

[Walt.Crawford at rlg.org]

I think this deserves a response, because it's a good question...

Tom TInney wrote...
> Roy Tennant wrote:
>
> > At the risk of dragging out the Discussion That Will Never End yet
> > further, I feel I must respond to the comment that perhaps Nature
> > wants us to broadcast the full-text of their articles to whatever
> > mailing list we choose. Their policy at <http://www.nature.com/common/
> > legal_notice.html> states
> >
> > "Unless you have Macmillan's prior written permission, you are not
> > permitted to copy, broadcast, make available to the public, download,
> > store (in any medium), transmit, show or play in public, adapt or
> > change in any way the material (or any part of it) contained on this
> > Web Site for any purpose whatsoever."
>
> Before this all ends, may I ask a question from those in the Know.
> It seems to me that the statement made above, contains an item
> that is in direct conflict with the concept of "Fair Use" in copyright;
> namely, "transmit, show or play in public, adapt or change in
> any way the material (or any part of it)" . . .
>
> I take strong issue with the item, " (or any part of it)".  I have
> noted on various web sites or publications, the suggestion
> that NO material can be conveyed, including links, without
> PRIOR approval of the web or publication administrators.
> In my mind, this completely eviscerates the concept of "Fair
> Use", in discussions either public or private.
>
> Can I please have an intelligent legal response to this
> particular item of interest to me?  Does this fall into
> a category of falsely implied illegal threats from
> organizations that post it, or some form thereof,
> contrary to the real intent of legal and lawful fair
> use in Copyright Law?

There are two issues: One relating to copyright and fair use, one relating
to licenses.

I am not a lawyer, but I'd guess lawyers would agree on this one:

1. From a copyright perspective, the statement is not unusual but is
nonsensical. It's a classic case of trying to spread the "permission
culture" from films and music to written literature.

Macmillan cannot forbid you from exercising fair use rights. They're
pretending that fair use doesn't exist (a fairly common stance, with some
Big Media types going so far as to say in public that there's no such
thing, despite its existence as written law).

If the material in question is on the open web, or in printed publications,
or anywhere else where you have not personally agreed to a more restrictive
license in order to gain access to it, then "(or any part of it)" is simply
wrong.

Check the title leaf of books; you'll see a similarly misleading stastement
in many cases. For example, -some of my published books included the
statement "No part of this book may be reproduced without the written
permission of the publisher," which is false.I should note that ALA
Editions uses a legitimate copyright statement - "All rights reserved
except those which may be granted by Sections 107 and 108 of the Copyright
Revision Act of 1976." Section 107 is Fair Use; section 108 includes other
exceptions to copyright, including those for academic use.

2. If you were required to agree to a license--to click on a EULA--to see
the material, then it's no longer a copyright issue. Whether such a license
would be legally conscionable or enforceable is quite another question, but
you're dealing with contract law, not copyright law.

I'd guess it's unlikely that #2 applies.

-walt crawford-