Copyright Limitations and Contracts : An Analysis of the Contractual Overridability of Limitations on Copyright - Lucie M. C. R. Guibault

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Copyright Limitations and Contracts

An Analysis of the Contractual Overridability of Limitations on Copyright

By: Lucie M. C. R. Guibault

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Hardcover | 19 February 2002

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Traditional copyright law strikes a delicate balance between an author's control of original material and society's interest in the free flow of ideas, information, and commerce.

In today's digitally networked environment, this balance has shifted dramatically to one side, as powerful rights holders contractually impose terms and conditions of use far beyond the bounds set by copyright law. This vitally significant book explores this conflict from its gestation through its current manifestations to its future lineaments and potential consequences.

Focusing on statutory copyright limitations that enshrine constitutional rights such as freedom of expression and privacy, foster dissemination of knowledge, safeguard competition, and protect authors from market failure, this book clearly explains the rationale for these limitations and questions the legality of overriding them by contractual means.

The author finds a complex array of factors clouding the emergence of coherent rules in the matter, among them the nature of the contract, the respective interests of the parties involved, and the legislated policy of particular regimes. She points out that the United States' new Uniform Computer Information Transactions Act (UCITA), which is likely to be adopted by many U.S. States and influence similar legislation in many other countries, leaves this crucial issue essentially unresolved.

Among the author's many startling insights is that, contrary to the commonly held notion that the Internet is a bastion of free speech, in fact it is now possible (via encryption technology) for the first time in human history to exercise absolute control over copyrighted material, even under circumstances of global mass distribution.

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Non-Fiction Law Laws of Specific Jurisdictions Intellectual Property Law Copyright Law Company Law Contract Law

Foreword	p. vii
Table of Contents	p. ix
List of Abbreviations	p. xiii
Introduction	p. 1
Current trends in the information trade	p. 1
Definition of the problem	p. 3
Structure of the Book	p. 6
Copyright Rules and Limitations	p. 7
General structure of the copyright system	p. 7
Objectives of the copyright system	p. 7
Natural rights argument	p. 8
Utilitarian argument	p. 10
Economic argument	p. 12
Limitations inside the copyright system	p. 15
Open or closed system of limitations	p. 17
Forms of limitations	p. 20
Exemptions	p. 21
Statutory licences	p. 22
Compulsory licences	p. 25
Mandatory collective administration of author's rights	p. 26
Justifications behind the limitations	p. 27
Protection of constitutional rights	p. 28
Freedom of expression	p. 29
Right to privacy	p. 47
Regulation of Industry Practice and Competition	p. 56
Press reviews	p. 56
Reproductions of computer programs	p. 65
Dissemination of knowledge	p. 69
Educational institutions	p. 69
Public libraries and archives	p. 73
Market failure considerations	p. 78
Transaction costs	p. 79
Non-rivalry	p. 82
Market failure and digital technology	p. 85
Conclusion	p. 87
Legal nature of the limitations	p. 90
Subjective right	p. 91
Objective right or privilege	p. 95
Influence of the form on the limitation's nature	p. 99
Influence of the justification on the limitation's nature	p. 103
Conclusion	p. 109
Freedom of contract	p. 111
Principle of freedom of contract	p. 112
Classic contract model	p. 113
Standard form contract model	p. 118
Conclusion	p. 121
Limits on freedom of contract	p. 121
Norms of public order	p. 122
Economic public order	p. 124
Protective public order	p. 143
Constitutional rights	p. 152
'Horizontal working' of fundamental rights	p. 153
Constitutional limits to fundamental rights	p. 164
Waiver of fundamental rights	p. 173
'Horizontal working' in contractual relationships	p. 176
Abuse or misuse of rights	p. 184
Conclusion	p. 194
Intersection between copyright rules and freedom of contract	p. 197
Contracts for the use of copyrighted material	p. 198
Classic contract model	p. 198
Standard form contract model	p. 199
Limits on freedom of contract	p. 213
Limits set by copyright law	p. 214
Europe	p. 214
United States	p. 230
General limits on freedom of contract	p. 241
Economic public order	p. 242
Protective public order	p. 251
Constitutional rights	p. 263
Abuse or misuse of rights	p. 277
Conclusion	p. 291
Summary	p. 291
Concluding remarks	p. 302
Samenvatting	p. 305
Sommaire	p. 319
Bibliography	p. 333
Index	p. 367
About the author	p. 377
Table of Contents provided by Ingram. All Rights Reserved.

Copyright Limitations and Contracts

An Analysis of the Contractual Overridability of Limitations on Copyright

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