Re: Publication, Access Provision, and Fair Use

[Sandy Thatcher <sgt3@psu.edu>]

> >  a journal publisher is not going to agree that an author of
> >  an article has this kind of right you are calling fair use
> >  (but may agree to give the author the right, via the contract,
> >  to do a certain amount of this kind of sharing, which we all
> >  recognize as reasonable)...
> Tell me, Sandy, how much of this kind of sharing do you recognise as
> "reasonable"? Because the only thing I recognize as reasonable is that
> every single would-be user of my research who needs access to it, should
> have access to it. Even one access-denied user is one user too much,
> and hence unreasonable, for research and researchers.
>
>
> Stevan Harnad
Publishers will of course differ about what they consider
"reasonable." At Penn State we do allow posting of peer-reviewed (but
pre-copyedited) articles as a "reasonable" accommodation of author
and publisher needs. I think that makes us Green OA compliant in your
terminology.

When I sign a contract with the University of Toronto Press for an
article in the Journal of Scholarly Publishing, I give UTP "exclusive
world rights" in the article and don't assume that I can freely
distribute copies to anyone I want under some generic "fair use"
privilege. ("Fair use" is not a part of Canadian law anyway in
exactly the way it is in U.S. law.) I have the option, which I have
sometimes exercised, of purchasing offprints, and those of course I
am free to do with as I like. I do assume that UTP would have no
objection to my making an occasional photocopy of an article for
which I do not have an offprint  to share with, say, a co-worker or
colleague at another press, as a form of de minimus copying. I do not
assume that I have the right, say, to share my article with the AAUP
general listserv consisting of some 600 university press colleagues,
or even with the AAUP listserv for other press directors, numbering
around 100. But these surely are professional colleagues just as your
fellow researchers are your colleagues, Stevan. Do you feel it's ok
to post your postprint article to such a listserv, as opposed to
complying with occasional individual requests (which is what I
presume your "fair use button" is used for)? Where do you draw the
line in what you consider to be your privilege in sharing your
research with other colleagues? Or do you just share the preprint in
an unlimited way and refer requests for the postprint (in any more
than an isolated, occasional way) to your publisher?

If you feel that it's ok for authors of journal articles to
distribute their articles, in preprint or postprint form, to any
number of colleagues in any manner they wish, why shouldn't this same
logic of "sharing research with colleagues" apply to authors of
books? Do you feel it's ok for authors to send a copy of their books,
in preprint or postprint form, to any colleagues they wish either
upon request or just because they'd like them to know about it? If
not, on what principled grounds would you distinguish the application
of a "fair use" privilege to these two cases?

As a publisher, I would worry a great deal about an author sending
his book to any or all of his colleagues, or posting it on his own
web site or in his university's institutional repository. You might
reply that some authors have found that doing so increases the print
sales of their books. Yes, a few authors, like Larry Lessig and Yochi
Benkler, seem to have had this experience. (I say "seem" because one
has no way of proving that the book would not have sold even better
in print without the online availability of the book.) But the
circumstances of a few special authors like these can hardly be
extrapolated into a generalization for all books. My worry stems from
the fact that many academic libraries do not now buy revised
dissertations because they have access to the unrevised versions
through the ProQuest database or the Networked Digital Library of
Theses and Dissertations. So if even preprint versions of monographs
were to be placed online, there is good reason to believe that
library sales of such books would dry up.

I don't see how you can argue, from the point of view of its benefit
to research, though, why there should be any principled difference
between authors of journal articles and authors of books acting
differently. In humanities, at least, books are at least as important
as articles in advancing scholarship in most fields.
--
Sanford G. Thatcher, Director
Penn State University Press
USB1, Suite C
820 N. University Drive
University Park, PA 16802-1003
e-mail: sgt3@psu.edu
Phone: (814) 865-1327
Fax: (814) 863-1408
http://www.psupress.org

"If a book is worth reading, it is worth buying."-John Ruskin (1865)