RE: Obsolete legal concepts? (RE: Fair-Use/Schmair-Use...)

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

On Tue, 14 Aug 2007, Rick Anderson wrote:

> Stevan, having provided five examples of legal terms that you 
> consider obsolete, can you explain what makes them so in the 
> new environment?  Why, for example, is the concept of 
> "copyright" now obsolete?  Should the creators of original 
> works have no exclusive rights anymore -- and if not, why not? 
> And if the concept of "publication" is obsolete, why do you 
> insist on such a narrow definition of the term (to exclude, for 
> example, public distribution by means of OA archiving)?

Rick, fair questions, and I'll try to oblige:

(a) I have no view on any of the 5 terms (fair use, intellectual 
property, copyright, copy and publishing) as used in the digital 
domain in general. I am speaking only about the 2.5 million 
articles per year publishing in the world's 25,000 peer-reviewed 
journals. And the "new environment" is the PostGutenberg online 
environment -- which is, for these authors, the OA environment.

(b) Every single one of those articles (without exception, and in 
stark contrast to the rest of the digital domain) is written, and 
always has been written, purely for the sake of research usage 
and impact, not for royalty income.

(c) Hence all the royalty/rights-based legislation and 
terminology implicit and explicit in those 5 moot terms -- moot 
in this, the research/OA domain: nolo contendere elsewhere -- are 
simply irrelevant and inapplicable to these 2.5 million articles 
and their authors in the PostGutenberg (OA) era.

(d) All these authors want only three things: (1) to have their 
papers peer-reviewed by an established peer-review authority 
(with a track-record for quality and rigor) and (2) to have those 
peer-reviewed papers (certified as such, by the name of the 
journal that implemented the peer review) accessible online to 
every potential user on the planet, with absolutely nothing 
blocking their (online) access -- least of all whether the 
would-be user's institution happens to be able to afford to pay 
for subscription access to the journal in which it happened to be 
published.

(That, by the way, is precisely what they mean by "publication," 
no more nor less: Certified as having met the peer-review 
standards of an established peer-review authority, i.e., a 
peer-reviewed journal. Not vanity-press self-posting or blogging 
-- which is not to say that such things may not sometimes be of 
interest to some too.)

(e) The third thing these authors want is (3) to retain their 
authorship of their works -- that is, to make sure their texts 
are not altered or plagiarized and put forward as someone else's 
work; and to try to make sure they are used with attribution.

(f) No, the moot notions of IP and copyright are *not* what these 
authors want or need in order to protect their authorship. IP and 
copyright have always been 95% preoccupied with protecting from 
illegal (read: "unpaid") "copying" (moot) of the text, which 
these authors have no interest whatsoever in preventing.

So much for IP, copyright, copy, and publication. Fair use (for 
these authors, of these works) is the use I have just described.

Until and unless the 5 moot Gutenberg terms can fully align 
themselves with the needs and wishes of this special community of 
authors -- the peer-reviewed research community -- they are of no 
use to us in the PostGutenberg OA era.

      Five Essential PostGutenberg Distinctions
      http://cogprints.org/1639/01/resolution.htm#1

Stevan Harnad