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

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

I think Sandy Thatcher continues to have several different things 
a bit mixed up, but it does not matter much because he is talking 
mainly about books whereas I am talking only about journal 
articles.

Here it is again, de-mixed:

(1) What I am calling Fair Use is authors emailing eprints of 
their own articles to individual eprint requesters, for research 
purposes, as they have been doing with paper reprints or 
photocopies, by regular mail, for a half century.

(2) I have no "model," but I suppose you could say that there is 
a compromise institutional and funder self-archiving mandate that 
I advocate as a model (when a stronger mandate cannot be 
successfully and quickly agreed upon): The 
Immediate-Deposit/Optional-Access Mandate (ID/OA), requiring 
deposit of the final draft immediately upon acceptance for 
publication, but only recommending, not requiring, immediate 
setting of access to that deposit as Open Access. Closed Access 
deposit plus the "Fair Use" (Eprint Request) Button is then 
available as an option.

     http://openaccess.eprints.org/index.php?/archives/71-guid.html
     http://www.eprints.org/news/features/request_button.php

(3) I do (strongly) advocate that all authors should both deposit 
and set access as Open Access immediately, but I am not 
particularly calling that formally "Fair Use," in the narrow 
legal sense. I would call it "Sensible Use," in the rational 
sense.

(4) I also much prefer a stronger mandate rather than ID/OA: The 
best mandate is Immediate-Deposit/Immediate-Access. But, as 
noted, time should not be wasted (as it is being wasted) trying 
to get this stronger mandate adopted, when the ID/OA mandate will 
do. ID/OA is also far preferable to a Delayed Deposit mandate, in 
which it is not just the OA-setting that is embargoed, but the 
depositing itself. That is the worst "mandate" of all, and it is 
foolish in the extreme to adopt it rather than ID/OA.

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

Some replies to Sandy:

On Fri, 15 Jun 2007 sgt3@psu.edu wrote:

> The thrust of my comments was not directed at your model, 
> Stevan, but at what broad interpretations of "fair use" as 
> equating with "educational use" encourage faculty to believe. 
> If they further believe that they retain all "fair use" 
> privileges after transferring all rights to a publisher, and 
> many of their colleagues join them in this belief and establish 
> a "best practice" of posting postprints to their personal web 
> sites or local IRs, under 504(c)(2)

I hope it is clear now that although I most definitely do think 
that that (Immediate Deposit, Immediate Access) is the best and 
most sensible thing to do ("best practice"), and I wish all 
researchers were doing it of their own accord, without the need 
for a mandate, that is *not* what I was calling "Fair Use" 
(indeed it has nothing to do with the "Fair Use Button," which 
would be superfluous if all deposits were immediately made OA.)

> their "reasonable" belief that this is a correct practice under 
> fair use will insure them against liability for infringement 
> should a publisher decide to bring suit, thus discouraging 
> legal challenges to the practice.

That's music to my ears. And if article authors had been doing 
that since 1994, as (subversively) proposed, we would already 
long have arrived at the optimal and inevitable outcome (100% OA) 
by now. But most authors are not yet doing that, hence we need 
the mandates.

http://www.arl.org/sc/subversive/i-overture-the-subversive-proposal.shtml

> The likely result, I allege, of such a scenario is undermining 
> a useful subscription-based service like Project Muse, which in 
> turn can lead to the demise of many humanities journals, which 
> is not the outcome desired by these authors but will be the 
> "unintended consequence" of their exercise of "fair use."

No, the outcome of 100% Green OA self-archiving would not be the 
demise of journals; if/when it made subscriptions unsustainable, 
it would merely cause a conversion to Gold OA publishing.

http://www.publications.parliament.uk/pa/cm200304/cmselect/cmsctech/399/399we152.htm

> Your own model, restricted as I understand it to individual 
> transactions between author and colleagues interested in the 
> author's research, I do not perceive to be a direct threat to 
> the survival of journals as it seems unlikely to lead to the 
> displacement of subscriptions by libraries and is more an 
> extension of the traditional practice of sending offprints or 
> photocopies to a limited number of colleagues in direct contact 
> with the author.

The Fair Use Button is not a model. It is merely a way of meeting 
research usage needs during any embargo period in which access to 
the deposited article is set as Closed Access instead of Open 
Access.

> But I still wouldn't call it "fair use" because permission is 
> explicitly invoked in this process.

Sending individual reprints to individual requesters for research 
purposes has already established "best practice" status 
("ensuring against liability," to use your words) for a half 
century now.

Best wishes,

Stevan Harnad