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

["adam hodgkin" <adam.hodgkin@gmail.com>]

On most of the substantial points in the Open Access debate I 
find myself in complete agreement with Steven Harnad.

But on this issue it seems to me plain that Sandy Thatcher has 
the argument won. Hands down, fair and square. Furthermore, there 
most clearly is scope for debate about the role of 'fair use' in 
the internet age. The application of this legal term, and the 
others mentioned by SH, may be transformed by new technology but 
they are not redundant.

Fair Use/Fair Dealing is in fact a particularly important concept 
in this transition to a web-based research environment -- because 
it is the appeal to fair use which allows but also limits the 
extent to which prior work can be appropriated and redirected in 
the new communication platform.For example, if the currently 
contested Google Book Search issues come to a judicial 
resolution, it is very likely that the judges involved will give 
some consideration to the role of Fair Use/Fair Dealing in an 
environment in which printed texts can be automatically ingested, 
processed and re-used by machines and their software.

Adam

---------- Forwarded message ----------
From: Sandy Thatcher <sgt3@psu.edu>
Date: Aug 17, 2007 12:00 AM
Subject: Re: Fair-Use/Schmair-Use...
To: liblicense-l@lists.yale.edu

If there is anything fundamental to "fair use," both in legal and 
even common sense terms, it is that a request for permission is 
NOT part of the process. But the "Fair-Use Button" is explicitly 
set up as a process for requesting permission from a potential 
user to the author. How this is "transparent" and "not tortured" 
is beyond me. It perverts the whole concept of fair use. Stevan, 
your stubborn adherence to this terminology IS potentially 
confusing, and it has nothing to do with the "papyrocentric" 
environment in which the concept was originally applied. In the 
online universe as well, "fair use" and asking permission are 
mutually exclusive. If there is anything "incoherent" going on 
here, it is your persistence in using a legal term to denote a 
process that is the exact opposite of what it is meant to denote.

Sandy Thatcher
Penn State University Press

>On Mon, 6 Aug 2007, Peter Hirtle wrote:
>
>>I for one am in agreement 100% with Sandy Thatcher on this. We 
>>already are suffering confusion because of the ill-advised 
>>decision to use terms like "self-archiving" and "open archive," 
>>both of which have nothing to do with archives or the permanent 
>>retention of knowledge.
>
>Both terms were perfectly fine for providing online access 
>(permanently, of course).
>
>But "open archive" then went on to denote OAI-compliant and 
>interoperable, but not necessarily Open Access, so "Open Access" 
>was needed as an extra descriptor. "Repository" was (and is) of 
>course entirely superfluous ("archive" would have done just 
>fine), but now "Institutional Repository" has consolidated its 
>supererogatory niche, so OA IR is what we have to make do with.
>
>>Now we have proposal to use the term "fair use" in a manner 
>>that has nothing to with either the American concept of "fair 
>>use or the British concept of fair dealing.
>
>The "American concept of fair use or the British concept of fair 
>dealing" comes from the paper era, and does not fit the online 
>era, especially for research. So they have to be adapted and 
>updated. Not the online era to the antique terminology, but the 
>terminology to the online era.
>
>The adaptation needs to be natural, commonsensical and 
>transparent, not tortured and procrustean, attempting to 
>resurrect obsolete, inapplicable and incoherent usages of "fair 
>use" by insisting on fidelity to defunct, papyrocentric 
>intuitions, consigning the commonsense ones to "schmair use." 
>That would be pedantry, not progress.
>
>>Harnad's proposal would just further obfuscate what is meant by 
>>both. Further, using the term suggests a specific legal basis 
>>for the action, when in reality the actions may be authorized 
>>by license. Schmair use it is... Peter B. Hirtle CUL 
>>Intellectual Property Officer Technology Strategist Cornell 
>>University
>
>It is *fair use* -- legally as well as commonsensically -- to 
>email a copy of your article to an eprint requester. It is fair 
>use -- legally as well as commonsensically -- for the requester 
>to read and use that emailed copy. End of story. The rest would 
>just be self-imposed confusion and obfuscation. One should 
>update one's understanding of "fair use" rather than trying to 
>consign these perfectly natural, contemporary and ubiquitous 
>instances to "schmair use."
>
>(By the way, I'd started calling it the "Fair Use" Button 
>instead of the "Eprint Request" or "Request Copy" Button, 
>inspired by someone else (I've forgotten who: felicitous 
>first-coiner please identify thyself!) to call it that, because 
>that made the Button's purpose and use far more transparent and 
>comprehensible, intuitively, and people at last understood what 
>the Button was really about, and for. Does anyone really imagine 
>that this is the time to call it the "Schmair Use" Button, out 
>of fealty to the Dark-Ages origins of the term "Fair Use"?)
>
>      "How the Immediate-Deposit/Optional-Access Mandate + the
>      'Fair Use' Button Work"
>      http://openaccess.eprints.org/index.php?/archives/274-guid.html
>
>      "Get the Institutional Repository Managers Out of the Decision Loop"
>      http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/6482.html
>      http://openaccess.eprints.org/index.php?/archives/260-guid.html
>
>Stevan Harnad