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

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

Peter,

Very interesting and I think we are making progress in 
understanding one another, but we are still not quite there: If 
one took what you appear to be saying below literally, then the 
millions (maybe billions) of photocopies of their own articles 
that authors have been mailing to reprint-requesters for the past 
half-century could not have been mailed, because those authors 
had signed away their right to do so.

I don't believe anything they ever signed took away that right; 
and if on someone's theoretical construal they *are* construable 
as having done so, then there is no way that that the exercise of 
that right could ever be prevented, or any attempt to prevent it 
be justified.

That is why I take this all to be an exercise in hypothetical 
hermeneutics, not real-world research and researcher practice. In 
the real world, researchers never asked themselves or anyone else 
whether they had the right to send photocopies of their very own 
articles to would-be users who asked for them; they just sent 
them: first photocopies by mail, and now eprints by email.

It is conceivable that if, over 5 decades ago, an author, having 
received a reprint request, had formally consulted an IP 
specialist instead of just xeroxing a copy and licking the stamp, 
to ask: "May I do this?" he might have received the advice: "No, 
you may not, unless you renegotiate your copyright agreement with 
your publisher."

I submit that this would have been appallingly bad advice then, 
and it continues to be bad advice now. Researchers are quite 
right to just go ahead and do the sensible, natural thing with 
their own work (short of republishing it), without seeking 
"expert" advice.

(I could go further, and add that the physicists and computer 
scientists [and countless others in other fields] who have [again 
without seeking any specialist's advice] been posting their 
preprints and postprints on their websites and Arxiv [and even 
earlier on their FTP sites] without a single legal challenge for 
nearly 2 decades now were likewise doing the sensible thing. But 
since the non-posters seem in part to be inhibited today because 
of what they think is expert advice, I will leave that moot for 
now: I am not talking about OA posting, just about fulfilling an 
individual request for an individual copy.)

Charles Oppenheim suggested that the 5-decade-long uncontested 
(and incontestable) practice of mailing individual reprints (and 
now emailing individual eprints) is not so much the exercise of 
so-called "fair-use/dealing rights" but rather the exercise of a 
natural exemption from copyright transfer agreements. (I'd say 
fair-use/schmair-use -- practically speaking it all amounts to 
exactly the same thing!)

As to the two examples you cite below, Peter:

> [1] one faculty member here [got] charged $400 to reproduce a 
> figure from one of his articles, and [2] a graduate student 
> [got] charged $1500 to reproduce one of his articles in his 
> dissertation. Stupid? Yes. Legal? Also yes...
I would reply that [1] is completely irrelevant to what we are 
discussing here, because we are discussing the author giving an 
individual copy to an individual requester here, not 
republication, all or in part.

For [2] there might also be a sleazy stretch by which a 
dissertation could be construed as a "publication," again 
collapsing it into case [1] above. I think this sort of nonsense 
has been exorcised from most copyright transfer agreements today, 
but again [2] is completely irrelevant to the case under 
discussion here, which is not about republication, but but about 
the author giving an individual copy to an individual requester.

(I hope you won't now tell me, Peter, that even to make a 
photo-copy, or to run off a hard copy, of my very own paper, I 
need to have specifically retained that right from my publisher. 
We have to draw some rational lines in the sand, otherwise we 
will find ourselves having to include a formal contract with our 
theater tickets to the effect that whilst sitting in our 
purchased seats, we are entitled to breathe in the accompanying 
air!)

If I were that graduate student, by the way, there is no way on 
earth I would have paid my article-publisher a penny for 
submitting it as part of my dissertation. If he wants to go after 
anyone, let the publisher try to go after whoever tried to 
*publish* the dissertation. I, as student, merely *submit* it, my 
own research findings, as partial fulfillment of my degree 
requirements. (If that's not "fair use," I don't know what is!)

Chrs, Stevan

On Tue, 21 Aug 2007, Peter Hirtle wrote:

> 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