Re: Fair-Use/Schmair-Use...

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

On Tue, 14 Aug 2007, Peter Hirtle wrote:

> a publisher might respond that in a digital age, where it is 
> possible to purchase from the publisher a copy of an article 
> for immediate access, anyone bypassing that system is far from 
> being "fair."

Research is not funded, conducted, or published in order to 
provide revenue for publishers. Researchers reluctantly agreed to 
toll-gated usage in the paper era, because that was the only way 
they could reach users at all, and it cost a lot of money that 
had to be recovered.

This is no longer true in the online era, and publishers just 
have to get used to it. The only service that researchers still 
need from them is (the implementation of) peer review. That costs 
incomparably less. If and when it is the *only* service 
publishers render to (peer-reviewed research journal article-) 
authors, they can and will be paid for it, on the Gold OA 
cost-recovery model -- out of the much larger windfall 
institutional savings from having cancelled all journal 
subscriptions.

But while journal subscriptions are still paying the costs (most 
of which pertain to producing the paper edition and the PDF, 
neither of which are essentials any more), researchers can and 
will and should make their research accessible to *all* of its 
would-be users, and not just to those whose institutions can 
afford the tolls for the publisher's version.

That's only fair -- unless you think the publishing tail should 
continue to wag the research dog:

      http://openaccess.eprints.org/index.php?/archives/277-guid.html

> The limitations of a papyrocentric world, where controlling and 
> charging for the use of individual articles was difficult have 
> given way to a world where it is possible to be "fairer" - and 
> charge for each individual use.

Fairer to whom, for what? Research is not funded, conducted, or 
published in order to provide revenue for publishers.

> It was ok to send to a requester a physical copy of an offprint 
> of your article that you had purchased (or been given) by the 
> publisher, since no reproduction was involved.  It is less 
> clear that making a photocopy of that article to send to a 
> requestor is legal - that requires a fair use analysis.

No it doesn't. It requires a common sense and historical 
analysis:

(1) Article authors have been doing it for over a half century.

(2) Anyone who imagines that an author can (or should) be 
prevented from photo-copying his *own* article for whatever use 
he sees fit is living on another planet. (Some lawyers and IP 
police might still be living there.)

> If the requester works for a commercial firm and is asking for 
> a copy of the article as part of her research, making and 
> sending that copy is probably not a fair use (see American 
> Geophysical v. Texaco).

If an individual asks the author for a copy of his published 
article, and the author photocopies it and gives it to him, it is 
no one's business. I haven't seen the case you mention, but 
shouldn't it be "American Geophysical vs. I. M. Author" to fit 
the point under contention?

>  When you move into the realm of email and "fair use" buttons, 
> you have entered the realm of systematic copying and 
> distribution that greatly challenge the extent of acceptable 
> fair use.

Nope. It's still just individual authors giving away individual 
copies of their own articles to individual requesters, as always, 
on a case by case basis.

> And remember - if you have signed most of the standard 
> copyright transfer agreements, the fact that it is "your" 
> article makes no difference at all - it could be an article 
> written by anyone.

I don't buy that, insofar as the individual authors of the annual 
2.5 million articles in the planet's 25,000 peer-reviewed 
journals are concerned. They did it with reprints; they continue 
to do it with eprints. And why on earth would anyone imagine that 
they should or would stop doing it, pending a "fair use 
analysis"?

Research is not funded, conducted, or published in order to 
provide revenue for publishers. To think otherwise is to imagine 
that the publishing tail can and should continue wagging the 
research dog, regardless of how dysfunctional it would be for 
research, researchers, their institutions, their funders, the R&D 
industry, and the tax-paying public that funds the research, and 
in whose interests the research is conducted.

> Since doing this may be costing the publisher anywhere from 
> $30-$120 per article, it is hard to even argue that 
> common-sensically this is "fair."

The only relevant publisher cost is the true cost of peer review. 
The rest is all moot (and obsolescent). Research is not funded, 
conducted, or published in order to provide revenue for 
publishers...

Stevan Harnad