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

["Bebbington Laurence" <Laurence.Bebbington@nottingham.ac.uk>]

I don't believe I have misrepresented "commercial purposes" as 
Andrew Adams suggested. To keep things reasonably short. Firstly, 
the notion of commercial competition with or substitution for the 
use of a copyright work is dealt with by the application of the 
fairness test in "fair dealing" in UK law (we do not have "fair 
use") and not through the "commercial purposes" amendment in 2003 
to the 1988 Act. This has been the approach in UK law since at 
least 1911. Secondly, I did not suggest that academics enjoy any 
more or less privileges than others. They don't. The brief 
scenario I put concerned someone in a research lab in a 
commercial firm being supplied with a copy of an item where the 
copyright in the item has been transferred to the publisher 
(Bernard's particular concern in the original posting was to 
"after the author has given up his copyrights to the editor."). 
What people do in permitting use of their own copyright material, 
and how they do it, is their business. Where the use is 
commercial and is of a publisher's item then its supply, by any 
means, is subject to the framework of the law as established in 
2003. Thirdly, although there is as yet no case law it is quite 
clear that in UK law the issue of "commercial purposes" relates 
to the use to which the item will be put (whether for research or 
private study irrespective of the context) and if that use is 
"commercial" then within the UK only the copyright owner can 
authorise copying, unless the institution is licensed by an 
organisation such as the Copyright Licensing Agency under a 
licence that allows commercial use. I do not dispute that there 
is ambiguity and difficulty in interpreting "commercial 
purposes."  UK universities are licensed (i.e. we pay for it) for 
the commercial copying that academics are currently doing on 
campus.

That is the position.

The whole issue of what constitutes commercial/non-commercial use 
and how this should be managed is something which has vexed UK 
academic libraries for the last 4 years.

Where authors own the copyright or are using a version other than 
the publisher's final one then they can authorise what they want 
through any button and whatever the button is called.

Laurence Bebbington

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Stevan Harnad
Sent: 24 May 2007 01:44
To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM@LISTSERVER.SIGMAXI.ORG
Subject: 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
> Leics LE1 3TU

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.

      http://openaccess.eprints.org/index.php?/archives/71-guid.html
      http://openaccess.eprints.org/index.php?/archives/136-guid.html

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 
eprint.

      http://www.eprints.org/news/features/request_button.php
      http://wiki.dspace.org/index.php//RequestCopy

Stevan Harnad