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

[Peter Hirtle <pbh6@cornell.edu>]

Stevan, the problem is becoming clearer.  You feel that an author 
still has some rights in an article even after he or she has 
signed away all rights to that article.  Specifically, you 
believe the author retains the ability to give away copies of the 
article, even in a systematic fashion, upon demand.

I personally agree with you that authors should be able to do 
this.  But if they want to do it, then they need to stop turning 
over all of their copyrights to publishers, and instead 
explicitly retain these rights themselves.  If they do sign a 
copyright transfer agreement that transfers all rights to the 
publisher, then the authors have no more legal right to make one 
of the articles that they authored available through your system 
then they would have to provide one of my articles. In both 
cases, all of the copyright rights, including the exclusive right 
to reproduce and distribute a work, belongs to someone else.

The bottom line: you can't sign a legal contract with binding 
terms that transfers all of your rights and then claim that you 
can do something else because it is 'traditional' or because it 
is what you really meant.  If you want to be able to do the 
things you want to do, use the Scholars Commons Addendum Engine 
to generate a contract amendment that preserves those rights for 
you.  And when you have done that, you are not using 'fair use' 
to deliver those copies to users - but are instead exploiting a 
right that you have retained.

You wrote: "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."

Well, I haven't seen an author get sued for copying his or her 
own article yet, but we have had one faculty member here get 
charged $400 to reproduce a figure from one of his articles, and 
a graduate student be charged $1500 to reproduce one of his 
articles in his dissertation.  Stupid?  Yes. Legal?  Also yes - 
because in both cases, the authors signed a legally binding 
document that transferred all of their rights to the publisher.

Peter B. Hirtle
pbh6@cornell.edu