Benson: You are tuned in to Copyright Chat.  Copyright Chat is a podcast dedicated to discussing important copyright matters. Host Sara Benson, the Copyright Librarian from the University of Illinois, converses with experts from across the globe to engage the public with rights issues relevant to their daily lives.  Today, we have Professor Guy Rub with us remotely. He works for the Ohio State University Moritz College of Law. Welcome.

Rub: Thank you. I am happy to be here, Sara, virtually.

Benson: So today, I wanted to talk to you about a recent paper that you wrote, but first, I wanted to ask you a question that I asked all of my participants on my podcast which is, how did you get interested in copyright law?

Rub: Well you see. It happened when I did my PhD at the University of Michigan, and I had various interests there, but at some point I got interested in copyright. It’s a very complex set of rules and standards and legal principles. I like the way that it interacted with so much other stuff, with so many other areas of the law, but also with so many things that has nothing to do with the law or supposedly, nothing to do with the law, like art and movies.  So it just happened, and I like it.

Benson: OK, and I agree with you that it’s fascinating how much art and law intertwine in copyright which is always fun. So I read with interest your most recent paper titled, “Copyright Survives: Rethinking the Copyright Contracts Conflict,” which is forthcoming in the Virginia Law Review. And I often tell folks that contract trumps copyright. Is that too simple a statement?

Rub: It’s likely. It’s almost. When they conflict, you’re mostly right. Wow, that was a difficult statement to make.  Yes. When I can write the contract, and if we enforce it, that contract can override what the arrangement that are said by copyright law. That is correct.

Benson: OK.

Rub: Let me give you an example. We have an arrangement, we have many arrangements like that, in other areas of the law, and the law sets sort of a baseline, and we can agree on something else. You know, I can, between me and my neighbor, you know, the law says what right I have and what right my neighbor has, but if we agree on something else, that something else can sort of change the underlying arrangement.

Benson: Right, and so where is this copyright contacts conflict that you’re addressing in your paper, in what realm does that exist?

Rub: Well, the reason that it exists is because there are many people, and we can talk why and where they’re coming from, who don’t think that contract should always trump copyright. They believe that, you know, we can’t contract about everything, right, there’s some stuff we’ve all agreed that we can write contracts about. The easier example is, you know, slavery. I can’t write the contract that I sell myself even if it’s agreed upon. So it’s possible, at least, that what some people suggest, that some arrangements with in our corporate system should not be subject to contract, cannot, basically, in that when those two are clashing, at least in some area, some people say, you know, copyright should actually triumph, and so, if I write an agreement, that’s the argument, right, if I write an agreement that suggests that I’m waiving my fair use rights, maybe the argument is, well that’s not true. We should not let the contract trump my fair use rights. They’re unwaivable. That’s the fault of the technical term, right. So that’s where the conflict is, the conflict is, if you accept the idea that, you know, it doesn’t work th