RE: OA Mandates, Embargoes, and the "Fair Use" Button

[sgt3@psu.edu]

If there are any lawyers lurking on this list, I would appreciate 
an opinion. Does a contract that transfers "all rights" (using 
that language), which is what most journal contracts I have seen 
actually say, leave any rights to the author that are not 
specified explicitly in the agreement? Unless I have sadly 
misconstrued contract law for the past forty years, I do not 
think so. Stevan seems to think that turning over all rights 
means something less than that language would ordinarily imply, 
and that it is up to every author who signs a contract to 
interpret what rights remain to him or her under "fair use." 
Since anyone who knows fair use jurisprudence well understands, 
that provides very wide latitude for interpretation, which would 
mean that contract law would end up having a gaping hole in it if 
such a "fair use" privilege were somehow to survive the signing 
of a contract.

And, by the way, such "all rights" transfers are not confined to 
journal articles. They are the typical transfers used by academic 
publishers with book authors who are not represented by literary 
agents (as few are).

Sandy Thatcher
Penn State Press



>On Fri, 1 Jun 2007 Sandy Thatcher, President, American
>Association of University Presses, wrote:
>
>>  Actually, Stevan, I think it is confusing to speak of a fair
>>  use button at all here. The reason is that if something can be
>>  used under fair use, no permission is required at all.
>
>That's the point. No permission is required at all.
>
>>  Now, under your closed/delayed access scenario, the would-be
>>  user obviously can't obtain a copy without gaining access
>>  somehow to it, and so the function of your fair use button is
>>  to provide a mechanism for the author to give the requester
>>  access to the article. But this is tantamount to giving
>>  permission to the user, and if permission is explicitly given
>>  in this way, fair use really doesn't pertain.
>
>Look at how formalism obscures the obvious:
>
>Sandy, here is the point: Researchers write articles reporting
>their findings and publish them in peer-reviewed journal
>articles. They'd like every potential user to be able to access
>and use those findings, but because of access-tolls, many can't.
>So they would like to make the articles freely accessible on the
>web, immediately. For 62% of articles, the publisher has endorsed
>that practice. But for the remaining 38%, their publisher prefers
>to embargo web access. So those articles are deposited on the web
>as Closed Access (only metadata visible webwide) and the Fair Use
>Button allows potential users to access them almost-OA,
>almost-immediately.
>
>I hope that makes it clearer. And I've managed to say it without
>making any reference to the formal arcana or jurisprudence of
>rights.
>
>>  So it doesn't make sense to employ the terminology here; it is a
>>  red herring. Call it a permission or access button instead.
>
>I am grateful for the advice, but I think "Fair Use Button" comes
>closest to conveying the intended meaning in a transparent way,
>highlighting the functional complementarity with OA. (I find the
>language of "permission" for providing access to one's own work
>misleading and tendentious, and I prefer to reserve "access" for
>Open Access.)
>
>>  The point still remains that you were talking about a scenario
>>  where the author already signed a contract, and you claimed
>>  that fair use rights remain the author's prerogative even after
>>  signing such a contract. Rick and I agree that this is not so.
>
>I did not talk about any contract in particular, but of course
>the pertinent contract is the one the author signs with the
>journal publisher. That contract takes many forms, but none I
>have ever heard of explicitly agrees to give up Fair Use rights.
>Hence this is a red herring.
>
>>  Fair use rights for everyone else remain, but not the author.
>>  Once a contract is signed, the author is bound by the terms and
>>  fair use doesn't apply.
>
>Since no nonfictional journal article author has signed a
>contract of the sort you describe (any more than any nonfictional
>borrower has signed a contract trading a pound of his flesh as a
>collateral for a loan), I suggest that we relegate all this
>hypothetical formalism to the confines of fiction, where it
>belongs.
>
>(If you really imagine, Sandy, that any author would be foolish
>enough to agree to such an absurd and arbitrary formal condition,
>then rest assured that a "3rd-Party Fair Use Button" can easily
>be jerry-rigged, forwarding individual Fair-Use eprint requests
>from would-be users, via the Antonian Author, to Anyone Else (a
>designated colleague), who can then courageously hit the
>"authorise emailing of the eprint" button in lieu of the Author,
>making use of the Fair Use rights he, unlike the hapless Author,
>has duly retained. -- But I really must say that if I every found
>myself having to make use of such far-fetched hypotheticals to
>make a point, I would become suspicious of the point I was
>making. I resort to them here only as a counter-hypothetical,
>playing the game of empty formalism... The Fair Use Button, in
>contrast, is not hypothetical, but very real, and practical.)
>
>      http://www.eprints.org/news/features/request_button.php
>
>Stevan Harnad


-- 
Sanford G. Thatcher
Director, Penn State Press
USB 1, Suite C
820 N. University Drive
University Park, PA 16802-1003
phone: (814) 865-1327
fax: (814) 863-1408
http://www.psupress.org