Re: Fair use / fair dealing - a fantasy?

[Sandy Thatcher <sgt3@psu.edu>]

>Sandy Thatcher wrote:  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.  Full post at:
>http://www.library.yale.edu/~llicense/ListArchives/0706/msg00001.html
>
>If this were true, then for such works there is no fair use /
>fair dealing - and never was!  This is ludicrous!

The conclusion doesn't follow: such a contract overrides any "fair
use" rights of the author signing the contract, but does NOT
eliminate anyone else from making "fair use" of the author's essay.

Anyone who thinks that an author signing an "all rights" transfer has
any residual "fair use" rights better consult a lawyer before acting
on them. As I said earlier, since "fair use" is at best a very
ambiguous guide to what one can do in any given set of circumstances,
publishers would be crazy to let authors apply any interpretation of
that concept they wished because some would no doubt feel that "fair
use" gives them the right to distribute the final version of their
article to every one of their research colleagues throughout the
world through listservs and the like.

>
>Publisher/author agreements vary a great deal with respect to
>transfer of rights.  Agreements that give publishers rights to
>publish, first publication, and often redistribution, but leave
>all other rights in the hands of authors, are now common, as is
>the use of Creative Commons licensing.

Signing an agreement that transfers "all rights" does NOT mean that
authors are not allowed to do all sorts of things under the
agreement, including republishing the article in later work by the
author, posting some form of it in an institutional repository, etc.
I would bet that most journal contracts still proceed by having the
author transfer all rights, with the contract then stipulating what
range of activities the author may legitimately pursue under the
terms of the agreement. At Penn State our policy does allow authors
to post their peer-reviewed (but pre-copyedited)articles on their own
web sites or their institution's, with no delay after publication,
thus qualifying us as a Green OA publisher, I suppose.



>
>Authors with options for quality publishing are well advised to
>seek the publication route that leaves them their rights.  No
>wonder submissions at Hindawi are rising!

Authors certainly should read contracts carefully and shop around if
they think there are viable alternatives that give them more of what
they feel they need. Hindawi is attractive, I suppose, because of its
Gold OA approach, which is fine as long as the money to support the
cost of publishing comes from somewhere.



>
>Any opinion expressed in this e-mail is that of the author alone,
>and does not represent the opinion or policy of BC Electronic
>Library Network or Simon Fraser University Library.
>
>Heather Morrison, MLIS
>The Imaginary Journal of Poetic Economics
>http://poeticeconomics.blogspot.com


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