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

[Exchange posted with permission from Profs. Rentier and Oppenheim]

On 21-May-07, Bernard Rentier, Rector, U Liege, wrote:

>> Dear Stevan,
>> Can you give me some references on the authors' rights to use 
>> the "Request eprint" button during the Editor's imposed 
>> embargo period in the green OA model ? Is it legal? 
>> Particularly after the author has given up his copyrights to 
>> the editor. Thanks
>> Bernard

Dear Bernard,

Authors are entitled to distribute individual copies to 
reprint/eprint requesters on an individual basis. This is called 
"Fair Use." It is exactly the same thing that authors have been 
doing for 50 years, in responding to individual mailed reprints 
requests, except that these are email eprint requests.

You may consult with copyright lawyers if you wish. Fair use is 
not a right that a copyright transfer agreement can take away 
from anyone, especially the author!

The reply of my colleague Prof. Charles Oppenheim, an expert in 
these matters. follows below.

Best wishes,
Stevan Harnad

On Tue, 22 May 2007, C.Oppenheim@lboro.ac.uk wrote:

> "Fair use" in the USA, "fair dealing" in the UK ("private 
> copying" in continental Europe) are very similar but not 
> identical concepts.  In a nutshell, they give a person the 
> right* to make a copy of a copyright item for their research or 
> private study (and also, in the USA only, for teaching 
> purposes).  It also allows a person to request another person 
> to make such a copy for him/her.  Thus I could email Bernard to 
> ask him for a copy of an article he has written.  Bernard is 
> entitled to make that copy and send it to me if I want it for 
> the purposes of research or private study.  It makes no 
> difference if Bernard has assigned copyright in the item to a 
> journal publisher or not.
> Stevan is correct that this right* was the basis of delivering 
> p/copies and reprints to requesters in years gone by; the only 
> difference these days is that it is done electronically.
> Charles
> * Strictly speaking, a lawyer would emphasise that fair use/fair
> dealing/private copying is not a "right", but "an exception to
> copyright", but the distinction is meaningless in practice.
> Professor Charles Oppenheim
> Head
> Department of Information Science
> Loughborough University
> Loughborough
> Leics LE1 3TU
> Tel 01509-223065
> Fax 01509 223053

It is hence important to clear up any lingering misunderstandings that
may be making funders and institutions uncertain about whether to adopt

     (1) the Immediate-Deposit/Optional-Access (ID/OA) Mandate (also
     called the Dual Deposit/Release Mandate by Peter Suber)

or to adopt instead

     (2) the equivocal "Delayed Deposit Mandate" that many mandators have
     adopted (essentially leaving it up to publishers when authors should
     *deposit* rather than just when they should make the deposit OA).

Clearly, mandating immediate deposit and allowing the deposit to 
be Open Access immediately where feasible but Closed Access while 
there is a publisher embargo period (1) is infinitely preferable 
to a mandate that allows depositing itself to be embargoed (2).

During the embargo, the article's metadata are still visible 
webwide (author, title, date, journal, etc.), so would-be users 
who need access immediately for their research can email the 
author to request a single fair-use copy of the deposit, to be 
sent by email. Hence it is important for all potential mandators 
to understand this clearly.


This is of course especially pertinent to the "Fair Use" Button 
that is part of the Institutional Repository's interface. If a 
would-be user reaches a Closed Access deposit, they can cut/paste 
their email address into a box, and click on the "Fair Use" 
Button, which sends an automatic email request to the author, 
asking for authorization to email one individual eprint to the 
requester, for personal research use. The author can then just 
click on a URL to authorize the emailing of that individual 


Stevan Harnad