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

If this is what the "Fair Use Button" is all about, then Rick is right, and Stevan is profoundly misguided in thinking that an author reserves any kind of "fair use" rights after signing a contract that transfers all rights to the publisher, which is the typical transfer agreement used in journal publishing. It doesn't matter whether it is the peer-reviewed but not final version or the final PDF, nothing can be transferred by the author to anyone else unless it is specifically allowed by the contract once the contract has been signed. In recent years, many publishers have relaxed their proprietary control by allowing authors to do many more things, such as posting peer-reviewed but not final versions on their own web sites. But the key word here is "allowed": the author has no "fair use" right to do this absent a clause in the contract permitting such activity.

It's also interesting to me that Stevan considers self-archiving to reduce all publications costs to just the cost of peer review. I guess that means he has no respect for the value of copyediting, which does indeed cost money. It would be a much devalued world if we had to rely on authors alone to master the niceties of the English language. In my experience of forty years in publishing (beginning as a copyeditor), I have met few authors who do not benefit from copyediting.

Sandy Thatcher
Penn State University Press

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