Re: Definition of Open Access

[sgt3@psu.edu]

> OA itself is a form of access-provision, not a form of 
> publication. Gold OA is a form of publication.
This is a distinction without a practical difference, Stevan, and 
U.S. copyright law would not differentiate between the two; both 
Green OA and Gold OA would be technically defined as 
"publication" under the law.

> Rick is again quite right concerning those copyright transfer 
> agreements that explicitly state "I waive my author Fair Use 
> Right to send individual copies to researchers requesting my 
> work." But as far as I know, no publisher has ever drafted, and 
> no author has ever signed, such an absurd contract. (So, again, 
> talking about it is merely formalism, of no practical import for 
> the real, practical matter at hand: researchers providing free 
> online access to their refereed research findings for other 
> researchers who want to use them.)
Most journal contracts I am familiar with specify the transfer of 
"all rights." Such a transfer means what it says, quite 
literally, and it is entirely unnecessary therefore to include 
any specific waiver of fair use rights. The very act of 
transferring all rights effectively accomplishes that, and 
nothing more needs to be added.

What you surely have in mind, Stevan, is the previous practice in 
the print world of publishers providing offprints of articles to 
their authors on publication, obviously intending for authors to 
make use of those offprints by sharing them with colleagues. Once 
photocopying took over, some publishers ceased the practice of 
providing offprints as a needless extra expense and, at least 
tacitly, allowed the practice to continue of authors making 
(photo)copies of their articles for this same purpose. Now Stevan 
just assumes that the same practice naturally continues into the 
purely digital age, and I won't deny that many, probably even 
all, publishers accept this kind of copying as legitimate and 
don't intend to try preventing it. It is still not true, however, 
that the author retains any fair use right once an "all rights" 
transfer is effected. No such right exists, and only what the 
contract allows, or the publisher otherwise permits, makes the 
practice legitimate. That is the point Rick and I are trying to 
make, I believe.

--
Sanford G. Thatcher
Director, Penn State Press
University Park, PA 16802-1003