Publication, Access Provision, and Fair Use

[Stevan Harnad <harnad@ecs.soton.ac.uk>]

(1) In an academic's CV, under "Published Works," one lists books 
and articles. Manuscripts merely posted online are listed under 
"Unpublished Works."

(2) If the reprint of a published work is mailed or emailed to a 
colleague, or posted online, that is not another published work, 
nor a republished work: It is access provision, to a published 
work.

(3) Authors sending individual reprints and eprints of their own 
published work to individual requesters, for research use, is 
Fair Use, uncontested, and incontestable.

Some comments:

On Thu, 31 May 2007 sgt3@psu.edu wrote:

>>SH: OA itself is a form of access-provision, not a form of 
>>publication. Gold OA is a form of publication.
>
> This is a distinction without a practical difference, Stevan, 
> and U.S. copyright law would not differentiate between the two; 
> both Green OA and Gold OA would be technically defined as 
> "publication" under the law.
>
> I misspoke: as my colleague Ricky Huard on the AAUP Copyright 
> Committee reminds me:
>
> My guess is that he's making a distinction based on the 
> definition of "publication" in the 1976 Copyright Act: "the 
> distribution of copies or phonorecords of a work to the public 
> by sale or other transfer of ownership, or by rental, lease, or 
> lending. . . . A public performance or display of a work does 
> not itself constitute publication." If "access" equals 
> "display" (as I suspect he may be thinking), he has a point, 
> albeit a rather casuistic one: He's not copying and 
> distributing--just inviting 300 million of his closest friends 
> to see the display.

Both posting on the Web and giving away reprints or eprints of 
one's own published work are access-provision not publication. 
Only giving away reprints/eprints (for research purposes) is Fair 
Use.

> Most journal contracts I am familiar with specify the transfer 
> of "all rights." Such a transfer means what it says, quite 
> literally, and it is entirely unnecessary therefore to include 
> any specific waiver of fair use rights. The very act of 
> transferring all rights effectively accomplishes that, and 
> nothing more needs to be added.

I retain the uncontested and incontestable right to give away 
single reprints or eprints of my published work to individual 
requesters for research purposes.

> What you surely have in mind, Stevan, is the previous practice 
> in the print world of publishers providing offprints of 
> articles to their authors on publication, obviously intending 
> for authors to make use of those offprints by sharing them with 
> colleagues. Once photocopying took over, some publishers ceased 
> the practice of providing offprints as a needless extra expense 
> and, at least tacitly, allowed the practice to continue of 
> authors making (photo)copies of their articles for this same 
> purpose.

For research purposes. That's Fair Use. Uncontested and 
incontestable.

> Now Stevan just assumes that the same practice naturally 
> continues into the purely digital age, and I won't deny that 
> many, probably even all, publishers accept this kind of copying 
> as legitimate and don't intend to try preventing it.

So what is it that we are arguing about? I keep saying I am not 
interested in formalism here but in actual practice, uncontested 
and incontestable.

> It is still not true, however, that the author retains any fair 
> use right once an "all rights" transfer is effected. No such 
> right exists, and only what the contract allows, or the 
> publisher otherwise permits, makes the practice legitimate. 
> That is the point Rick and I are trying to make, I believe.

I retain the right to give single reprints or eprints to 
requesters for research purposes. That's the uncontested and 
incontestable practice at issue here.

Stevan Harnad