Copyright exceptions and fair use vs. contract law and CC licenses

Can copyright restrictions be circumvented by contract law? At the moment there is an interesting legal case pending on the matter in America. It concerns the relationships between the U.S. fair-use copyright doctrine and the limits set by a Creative Commons license (CC license).

Gatehouse Media, complainant in the dispute and publisher of American newspaper The Register Star, found out that another company is (illegally) selling their newspaper articles on plaques and finds that it is invading their company’s rights.

Interestingly, Gatehouse is, alongside claims of copyright infringement, trademark infringement and unfair competition claims, also claiming breach of contract, since the reprinted articles are made available under an Attribution-NonCommercial-NoDerivs CC license. The latter prohibits commercial re-use of the work.

The plaque-party however argues that its re-use is covered by the US fair use doctrine, since the newspaper articles are only printed on plaques if the clients themselves are named in the article.

It is an interesting question whether contract law can limit the scope and exceptions to copyright. This question is currently also on debate in other American conflicts and in other countries. For example, in the resale of CDs in America and on the re-use of product information in Great Britain. Also interesting is that the U.S. court will probably have to rule on the legal status of a CC license; is it a contract or a covenant?

Insofar Gatehouse is claiming breach of contract based on the CC Attribution-NonCommercial-NoDerivs license (and having the article you’re named in being printed on a plaque is indeed covered by the fair use exception), their case is not so strong. This specific CC license (and actually all the other CC licenses I suppose) emphasize that it under no circumstances undermines any provisions of fair use or moral rights (see bottom of license).

As for the Dutch situation, it is not completely clear how contract law relates to copyright exceptions.

Most Dutch copyright scholars believe that contracts setting aside statutory copyright limitations are an undesirable situation. Standard contracts that do limit copyright exceptions should be annulled or otherwise invalidated (Guibault). Some copyright exceptions (press announcements, citations and private copying) are sometimes ascribed a binding statutory character (Hugenholtz).

While others point out that - although undesirable - at the present Dutch law does not necessary oppose contractual restriction to copyright exceptions per se. Each individual case should be assessed to determine whether the contractual provision as such is contrary to the freedom of information or fair competition (Spoor, Verkade, Visser).