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

[C.Oppenheim@lboro.ac.uk]

A contract can indeed transfer all rights to a publisher.  But 
copyright law allows for exceptions to copyright, such as fair 
dealing (UK) or fair use (USA), whoever happens to own the 
copyright.  Thus, if I transfer the copyright in my work to a 
publisher, I (and anyone else) can make copies for research or 
private study.  So, if you want to call fair dealing/fair use a 
"right", then the question posed is that those rights remain with 
the author and any other third party.  (However, I prefer to 
think of them as exceptions to, or limitations of, copyright 
rather than a right enjoyed by third parties.)

Professor Charles Oppenheim
Head
Department of Information Science
Loughborough University
Loughborough
Leics LE1 3TU

Tel 01509-223065
Fax 01509 223053
e mail c.oppenheim--lboro.ac.uk

-----Original Message-----
From: Stevan Harnad [mailto:harnad--ecs.soton.ac.uk]
Sent: 05 June 2007 16:31
To: liblicense-l--lists.yale.edu;
AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM--LISTSERVER.SIGMAXI.ORG
Cc: Canadian Digital Copyright Forum; Digital Copyright;
cni-copyright--cni.org
Subject: RE: OA Mandates, Embargoes, and the "Fair Use" Button

On Tue, 5 Jun 2007 sgt3--psu.edu wrote:

> If there are any lawyers lurking on this list, I would 
> appreciate an opinion. Does a contract that transfers "all 
> rights" (using that language), which is what most journal 
> contracts I have seen actually say, leave any rights to the 
> author that are not specified explicitly in the agreement?

That's the right question. And in particular, does such a 
contract (absurdly) deny the author alone fair-use rights that 
are retained by every other person on the planet? (That's the hub 
of the question: The answer will be of course be No, it does not, 
unless that renunciation is added as an explicit -- and absurd -- 
extra contractual condition, which it never is. And if some 
lurking lawyer should opine otherwise, ask him if he thinks such 
an implicit, inherent absurdity is enforceable, and if not, why 
we are talking about it...)

> Unless I have sadly misconstrued contract law for the past 
> forty years, I do not think so.

> Stevan seems to think that turning over all rights means 
> something less than that language would ordinarily imply, and 
> that it is up to every author who signs a contract to interpret 
> what rights remain to him or her under "fair use." Since anyone 
> who knows fair use jurisprudence well understands, that 
> provides very wide latitude for interpretation, which would 
> mean that contract law would end up having a gaping hole in it 
> if such a "fair use" privilege were somehow to survive the 
> signing of a contract.
>
> And, by the way, such "all rights" transfers are not confined 
> to journal articles. They are the typical transfers used by 
> academic publishers with book authors who are not represented 
> by literary agents (as few are).

The fundamental difference between journal-article copyright 
contracts and book copyright contracts is not so much what the 
author can or can't do, but what the author would ever *want* to 
do. Most book authors go to publishers rather than to give-away 
vanity presses because they want their books to be marketed and 
to *sell* (and they want a cut of the sales revenues). 
Peer-reviewed journal article authors do not, and never have. 
They only want their articles to be read, used, applied and cited 
in further research by as many users as possible; they never seek 
or see a penny of royalty income.

So if there is a fair-use loophole for individual author 
give-aways in both cases -- income-seeking books and 
impact-seeking articles -- what has prevented it from surfacing 
since the online era is the simple fact that most book authors 
are simply *not interested* in giving away their books online 
(apart from a few promotional review copies) whereas *all* 
peer-reviewed journal article authors are.

Chrs,  Stevan

>>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