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

> 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.

This depends entirely on the model of OA under consideration. 
Both the Bethesda and Berlin statements use the following 
language: "The author(s) and the copyright holder(s) ... grant(s) 
to all users a free, irrevocable, worldwide right of access to, 
and a license to copy, use, distribute, transmit and display the 
work publicly and to make and distribute derivative works." 
(The Bethesda statement adds the word "perpetual" before the 
phrase "right of access"; the Budapest statement phrases the same 
ideas slightly differently.)  By granting to the world at large 
the right to copy, distribute, display and create derivative 
works, authors effectively divest themselves of all the rights 
that traditionally accrue to authors exclusively.  Whether this 
is a good thing or a bad thing is open to debate, but there's no 
question that the effect of OA under any of these three models 
has both a formal and a functional effect on authors' rights.

> 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...

It's exactly the point that was under discussion.  Your statement 
was that "Fair use is not a right that a copyright transfer 
agreement can take away from anyone, especially the author," and 
it is completely wrong.

Rick Anderson
Dir. of Resource Acquisition
University of Nevada, Reno Libraries