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

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

On Fri, 1 Jun 2007 Sandy Thatcher, President, American 
Association of University Presses, wrote:

> Actually, Stevan, I think it is confusing to speak of a fair 
> use button at all here. The reason is that if something can be 
> used under fair use, no permission is required at all.

That's the point. No permission is required at all.

> Now, under your closed/delayed access scenario, the would-be 
> user obviously can't obtain a copy without gaining access 
> somehow to it, and so the function of your fair use button is 
> to provide a mechanism for the author to give the requester 
> access to the article. But this is tantamount to giving 
> permission to the user, and if permission is explicitly given 
> in this way, fair use really doesn't pertain.

Look at how formalism obscures the obvious:

Sandy, here is the point: Researchers write articles reporting 
their findings and publish them in peer-reviewed journal 
articles. They'd like every potential user to be able to access 
and use those findings, but because of access-tolls, many can't. 
So they would like to make the articles freely accessible on the 
web, immediately. For 62% of articles, the publisher has endorsed 
that practice. But for the remaining 38%, their publisher prefers 
to embargo web access. So those articles are deposited on the web 
as Closed Access (only metadata visible webwide) and the Fair Use 
Button allows potential users to access them almost-OA, 
almost-immediately.

I hope that makes it clearer. And I've managed to say it without 
making any reference to the formal arcana or jurisprudence of 
rights.

> So it doesn't make sense to employ the terminology here; it is a
> red herring. Call it a permission or access button instead.

I am grateful for the advice, but I think "Fair Use Button" comes 
closest to conveying the intended meaning in a transparent way, 
highlighting the functional complementarity with OA. (I find the 
language of "permission" for providing access to one's own work 
misleading and tendentious, and I prefer to reserve "access" for 
Open Access.)

> The point still remains that you were talking about a scenario 
> where the author already signed a contract, and you claimed 
> that fair use rights remain the author's prerogative even after 
> signing such a contract. Rick and I agree that this is not so.

I did not talk about any contract in particular, but of course 
the pertinent contract is the one the author signs with the 
journal publisher. That contract takes many forms, but none I 
have ever heard of explicitly agrees to give up Fair Use rights. 
Hence this is a red herring.

> Fair use rights for everyone else remain, but not the author. 
> Once a contract is signed, the author is bound by the terms and 
> fair use doesn't apply.

Since no nonfictional journal article author has signed a 
contract of the sort you describe (any more than any nonfictional 
borrower has signed a contract trading a pound of his flesh as a 
collateral for a loan), I suggest that we relegate all this 
hypothetical formalism to the confines of fiction, where it 
belongs.

(If you really imagine, Sandy, that any author would be foolish 
enough to agree to such an absurd and arbitrary formal condition, 
then rest assured that a "3rd-Party Fair Use Button" can easily 
be jerry-rigged, forwarding individual Fair-Use eprint requests 
from would-be users, via the Antonian Author, to Anyone Else (a 
designated colleague), who can then courageously hit the 
"authorise emailing of the eprint" button in lieu of the Author, 
making use of the Fair Use rights he, unlike the hapless Author, 
has duly retained. -- But I really must say that if I every found 
myself having to make use of such far-fetched hypotheticals to 
make a point, I would become suspicious of the point I was 
making. I resort to them here only as a counter-hypothetical, 
playing the game of empty formalism... The Fair Use Button, in 
contrast, is not hypothetical, but very real, and practical.)

     http://www.eprints.org/news/features/request_button.php

Stevan Harnad