Re: Publication, Access Provision, and Fair Use

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

On Sun, 3 Jun 2007, Sandy Thatcher wrote:

> Probably the distinction that needs to be made in the future,
> for academics at least, is a list of "peer-reviewed works"
> versus a list of "works not peer reviewed." That is the more
> meaningful distinction in the age we live in today, not "published"
> versus "unpublished"...

I agree. And OA's target is peer-reviewed journal articles, not books,
hence the two (+/- PR, +/-P)amount to exactly the same thing in this
(OA) context, and always did.

> When photocopying came to take the place of offprints, the
> situation became murkier because photocopying theoretically would
> allow an author to distribute any number of copies; and then when
> the Internet came along, this problem only became exacerbated...

Sandy, what you describe here as a "problem" for the publisher
("exacerbated"), is in fact a great opportunity for research and
researchers to maximize the uptake, usage and impact of their research
findings. The token that does not seemed to have dropped is that it
is absurd to imagine that research and researchers can be expected
to renounce this opportunity in order to preserve the status quo for
publishers.

> a journal publisher is not going to agree that an author of
> an article has this kind of right you are calling fair use
> (but may agree to give the author the right, via the contract,
> to do a certain amount of this kind of sharing, which we all
> recognize as reasonable)...

Tell me, Sandy, how much of this kind of sharing do you recognise as
"reasonable"? Because the only thing I recognize as reasonable is that
every single would-be user of my research who needs access to it, should
have access to it. Even one access-denied user is one user too much,
and hence unreasonable, for research and researchers.

> ..."fair use" does not remain as a residual right after you have
> signed a contract transferring all rights in an article to a
> publisher... But of course only the parties actually signing
> the agreement are bound by it; everyone else is entitled to
> claim fair use in gaining access to the article and making use of it.

I won't comment further on this. We have already gone several rounds on
it and it wears its patent absurdity (and vacuity) on its sleeve.

Stevan Harnad