Re: Fair-Use/Schmair-Use...

["Peter Hirtle" <pbh6@cornell.edu>]

On 8/12/07, Stevan Harnad <harnad@ecs.soton.ac.uk> wrote:

> The "American concept of fair use or the British concept of 
> fair dealing" comes from the paper era, and does not fit the 
> online era, especially for research. So they have to be adapted 
> and updated. Not the online era to the antique terminology, but 
> the terminology to the online era.
>
> The adaptation needs to be natural, commonsensical and 
> transparent, not tortured and procrustean, attempting to 
> resurrect obsolete, inapplicable and incoherent usages of "fair 
> use" by insisting on fidelity to defunct, papyrocentric 
> intuitions, consigning the commonsense ones to "schmair use." 
> That would be pedantry, not progress.

And a publisher might respond that in a digital age, where it is 
possible to purchase from the publisher a copy of an article for 
immediate access, anyone bypassing that system is far from being 
"fair."  The limitations of a papyrocentric world, where 
controlling and charging for the use of individual articles was 
difficult have given way to a world where it is possible to be 
"fairer" - and charge for each individual use.

The point is that the definition of fair use does change - in the 
courts and in the legislature.  I would like to see a broader 
definition of fair use, closer to the one that you propose - but 
I would not do anything to indicate to others that my wishes may 
correspond to the current state of the law.

>> Harnad's proposal would just further obfuscate what is meant 
>> by both. Further, using the term suggests a specific legal 
>> basis for the action, when in reality the actions may be 
>> authorized by license. Schmair use it is...
>
> It is *fair use* -- legally as well as commonsensically -- to
> email a copy of your article to an eprint requester.

Unfortunately, this is far from clear.  It was ok to send to a 
requester a physical copy of an offprint of your article that you 
had purchased (or been given) by the publisher, since no 
reproduction was involved.  It is less clear that making a 
photocopy of that article to send to a requestor is legal - that 
requires a fair use analysis.  If the requester works for a 
commercial firm and is asking for a copy of the article as part 
of her research, making and sending that copy is probably not a 
fair use (see American Geophysical v. Texaco).  When you move 
into the realm of email and "fair use" buttons, you have entered 
the realm of systematic copying and distribution that greatly 
challenge the extent of acceptable fair use.  And remember - if 
you have signed most of the standard copyright transfer 
agreements, the fact that it is "your" article makes no 
difference at all - it could be an article written by anyone. 
Since doing this may be costing the publisher anywhere from 
$30-$120 per article, it is hard to even argue that 
common-sensically this is "fair."