Re: OA Mandates, Embargoes, and the "Fair Use" Button

From: Stevan Harnad <>
Date: Wed, 30 May 2007 04:12:39 +0100

Sandy Thatcher is confusing
    (1a) Open Access Self-Archiving
    (1b) Closed Access Self-archiving plus the Fair-Use Button.
Sandy is also confusing the issue of
    (2a) publishers who have or have not recently given their green light
    to Open Access Self-Archiving (1a)
    (2b) the longstanding fair-use practice by authors of mailing
    paper reprints to requesters and, more recently, emailing eprints
    to requesters.

Unlike the above current and straightforward matters, the question Sandy
raises about what will turn out to be the irreducible essentials of
Gold OA journal publishing after Green OA self-archiving reaches 100% --
(i) *if* the demand for the paper edition ever vanishes, and (ii) *if*
subscriptions ever become unsustainable -- is a hypothetical one. Sandy
asks whether I think those essentials will consist of peer review alone
or peer review plus copy editing: My guess is no better than anyone
else's but I'll guess it'll be mostly just peer review, with a little
copy-editing added on too.

(I've done more than my share of substantive editing too, and I agree
that most journal article authors are terrible writers. I guess that's
why they didn't become writers. I too would like to see the level of
journal article writing improved.)

Stevan Harnad

On Tue, 29 May 2007 wrote:

> If this is what the "Fair Use Button" is all about, then Rick is
> right, and Stevan is profoundly misguided in thinking that an
> author reserves any kind of "fair use" rights after signing a
> contract that transfers all rights to the publisher, which is the
> typical transfer agreement used in journal publishing. It doesn't
> matter whether it is the peer-reviewed but not final version or
> the final PDF, nothing can be transferred by the author to anyone
> else unless it is specifically allowed by the contract once the
> contract has been signed. In recent years, many publishers have
> relaxed their proprietary control by allowing authors to do many
> more things, such as posting peer-reviewed but not final versions
> on their own web sites. But the key word here is "allowed": the
> author has no "fair use" right to do this absent a clause in the
> contract permitting such activity.
> It's also interesting to me that Stevan considers self-archiving
> to reduce all publications costs to just the cost of peer review.
> I guess that means he has no respect for the value of
> copyediting, which does indeed cost money. It would be a much
> devalued world if we had to rely on authors alone to master the
> niceties of the English language. In my experience of forty years
> in publishing (beginning as a copy-editor), I have met few authors
> who do not benefit from copyediting.
> Sandy Thatcher
> Penn State University Press
> >On Thu, 24 May 2007, Bebbington Laurence wrote:
> >
> >> As far as UK law is concerned I think this statement is only
> >> partly true. For example, under UK law only the copyright owner
> >> can authorise reproduction/copying if the copying is for
> >> commercial purposes.
> >
> >The Fair Use Button is for an individual researcher's individual
> >research papers, as the form-request should clearly state.
> >
> >> - under UK law copying by anyone other than the copyright
> >> owner under the 1988 Act must generally be for research or
> >> private study, for non-commercial purposes.
> >
> >As above.
> >
> >> - where distribution of "reprints" is by some digital format
> >> then only the owner of copyright in the reprint (who may not be
> >> the author) can authorise the copying and distribution IF it is
> >> for commercial purposes.
> >
> >As above.
> >
> >> This would, I think, prevent an author who has assigned
> >> copyright from making or authorising the copying and sending of
> >> an item to someone IF the intended use is for commercial
> >> purposes (e.g. an author, who is not the copyright owner, could
> >> not send the published version to someone working in a
> >> pharmaceutical company's research laboratory). However, arcane
> >> this may seem, it is (in my view) the legal position.
> >
> >It is indeed arcane and seems to have nothing to do with the
> >topic at hand (and the rationale for Open Access), which is
> >individual research use for research purposes.
> >
> >> Charles, I believe, is referring to section 29(3) of the
> >> Copyright Designs and Patents Act 1988. That section permits
> >> one person to copy something on behalf on someone else in
> >> certain circumstances - and as long as it is for research or
> >> private study for non-commercial purposes.
> >
> >The only Fair Use Button directs the request to the author, who
> >is the only one who can authorize the sending.
> >
> >It is my impression that rights expertise is so focussed on the
> >formal that it has lost sight of the functional: OA has nothing
> >to do with commercial rights, either formally or functionally. It
> >is about researcher use of research for research. That's the
> >whole point. And that's why peer-reviewed research publication
> >never belonged under the trade publication banner, with its many
> >unwanted (for the researcher-author) "protections." In the
> >Gutenberg era, the protections were reluctantly accepted by the
> >researcher-author, who sought only impact, and never income,
> >because the income was nonetheless needed by the paper publisher
> >in order to cover true paper production and distribution costs.
> >Otherwise there could be no publication (hence no impact) at all.
> >
> >But in the PostGutenberg era the web makes it possible for the
> >the researcher-author to supplement paper distribution with
> >online distribution (self-archiving). (It also makes it possible
> >to reduce all publication costs to just the costs of managing
> >peer review, but that is not the issue here.) The Fair Use Button
> >is for the authors of those articles that are publishing in that
> >38% of journals that still attempt to resist this obvious benefit
> >for research and researchers made possible by the online medium.
> >Instead of making the self-archived text immediately free for all
> >upon acceptance for publication lie the authors in the 62% of
> >journals that are Green, the remaining authors can use the Free
> >Use Button until online access embargoes die their inevitable
> >natural death. The Button makes it possible for research to
> >improve all of our lives without having to wait.
> >
> >
> >On Thu, 24 May 2007, Rick Anderson wrote:
> >
> >>> SH: You may consult with copyright lawyers if you wish. Fair
> >>> use is not a right that a copyright transfer agreement can
> >>> take away from anyone, especially the author!
> >>
> >> Not to pick on you, Stevan, but this is a point that should be
> >> clarified: like many legal rights, fair use rights most
> >> certainly can be waived as a matter of contractual agreement.
> >> If you sign a contract that says you will not redistribute even
> >> single copies of the work in question, then you'll be legally
> >> bound to abide by it. (It would be silly to agree to such a
> >> term, but that doesn't make it legally unconscionable.)
> >>
> >> Rick Anderson Dir. of Resource Acquisition Univ. of Nevada,
> >> Reno Libraries
> >
> >I expect that one can waive one's right to breath air too, if one
> >is silly enough to agree to do so, but that, too, is not the
> >point under discussion here...
> >
> >Stevan Harnad
Received on Wed May 30 2007 - 11:40:17 BST

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