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

[Stevan Harnad <harnad@ecs.soton.ac.uk>]

On Thu, 24 May 2007, Bebbington Laurence wrote:

> As far as UK law is concerned I think this statement is only 
> partly true. For example, under UK law only the copyright owner 
> can authorise reproduction/copying if the copying is for 
> commercial purposes.

The Fair Use Button is for an individual researcher's individual 
research papers, as the form-request should clearly state.

>   - under UK law copying by anyone other than the copyright 
> owner under the 1988 Act must generally be for research or 
> private study, for non-commercial purposes.

As above.

>   - where distribution of "reprints" is by some digital format 
> then only the owner of copyright in the reprint (who may not be 
> the author) can authorise the copying and distribution IF it is 
> for commercial purposes.

As above.

> This would, I think, prevent an author who has assigned 
> copyright from making or authorising the copying and sending of 
> an item to someone IF the intended use is for commercial 
> purposes (e.g. an author, who is not the copyright owner, could 
> not send the published version to someone working in a 
> pharmaceutical company's research laboratory). However, arcane 
> this may seem, it is (in my view) the legal position.

It is indeed arcane and seems to have nothing to do with the 
topic at hand (and the rationale for Open Access), which is 
individual research use for research purposes.

> Charles, I believe, is referring to section 29(3) of the 
> Copyright Designs and Patents Act 1988. That section permits 
> one person to copy something on behalf on someone else in 
> certain circumstances - and as long as it is for research or 
> private study for non-commercial purposes.

The only Fair Use Button directs the request to the author, who 
is the only one who can authorize the sending.

It is my impression that rights expertise is so focussed on the 
formal that it has lost sight of the functional: OA has nothing 
to do with commercial rights, either formally or functionally. It 
is about researcher use of research for research. That's the 
whole point. And that's why peer-reviewed research publication 
never belonged under the trade publication banner, with its many 
unwanted (for the researcher-author) "protections." In the 
Gutenberg era, the protections were reluctantly accepted by the 
researcher-author, who sought only impact, and never income, 
because the income was nonetheless needed by the paper publisher 
in order to cover true paper production and distribution costs. 
Otherwise there could be no publication (hence no impact) at all.

But in the PostGutenberg era the web makes it possible for the 
the researcher-author to supplement paper distribution with 
online distribution (self-archiving). (It also makes it possible 
to reduce all publication costs to just the costs of managing 
peer review, but that is not the issue here.) The Fair Use Button 
is for the authors of those articles that are publishing in that 
38% of journals that still attempt to resist this obvious benefit 
for research and researchers made possible by the online medium. 
Instead of making the self-archived text immediately free for all 
upon acceptance for publication lie the authors in the 62% of 
journals that are Green, the remaining authors can use the Free 
Use Button until online access embargoes die their inevitable 
natural death. The Button makes it possible for research to 
improve all of our lives without having to wait.


On Thu, 24 May 2007, Rick Anderson wrote:

>> SH: 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!
>
> Not to pick on you, Stevan, but this is a point that should be 
> clarified: like many legal rights, fair use rights most 
> certainly can be waived as a matter of contractual agreement. 
> If you sign a contract that says you will not redistribute even 
> single copies of the work in question, then you'll be legally 
> bound to abide by it.  (It would be silly to agree to such a 
> term, but that doesn't make it legally unconscionable.)
>
> Rick Anderson Dir. of Resource Acquisition Univ. of Nevada, 
> Reno Libraries

I expect that one can waive one's right to breath air too, if one 
is silly enough to agree to do so, but that, too, is not the 
point under discussion here...

Stevan Harnad