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

From: C.Oppenheim_at_lboro.ac.uk <C.Oppenheim_at_LBORO.AC.UK>
Date: Mon, 6 Aug 2007 14:40:59 +0100

"Fair dealing" in the UK ("Fair Use" in the USA) is one of a number of
exceptions to copyright that provides a defence against an infringement
action. In particular, in this context, it is the defence that you were
entitled to make and/or receive a copy of a work for the purposes of
non-commercial research or private study without having to ask
permission from the copyright owner or pay the owner any fees. So if I
were to e mail Stevan to ask him to send me a copy of an article he had
written because I wanted it for my own non-commercial research or
private study, then if the copyright owner were to sue me for
infringement, I would say I was fair dealing, and if the owner were to
sue Stevan, he would say he supplied me a copy because I needed it for
fair dealing purposes.

With respect, both Stevan and Peter are in part incorrect; Peter,
Stevan's use of the term "fair use" is perfectly legitimate as what he
is proposing is indeed an example of fair use and there IS a legal
basis for what Stevan would be doing; and Stevan, you are wrong to say
that fair use is an out of date concept only applicable to print because
in fact it applies equally well to electronic copies.

I agree with Peter that the term "archive" had a quite different meaning
well before OA came on the scene, and its use by the OA community does
therefore cause confusion.

Charles

Professor Charles Oppenheim
Head
Department of Information Science
Loughborough University
Loughborough
Leics LE11 3TU

Tel 01509-223065
Fax 01509 223053
e mail c.oppenheim_at_lboro.ac.uk
-----Original Message-----
From: Repositories discussion list
[mailto:JISC-REPOSITORIES_at_JISCMAIL.AC.UK] On Behalf Of Stevan Harnad
Sent: 06 August 2007 14:08
To: JISC-REPOSITORIES_at_JISCMAIL.AC.UK
Subject: Re: Fair-Use/Schmair-Use...

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
AMERICAN SCIENTIST OPEN ACCESS FORUM:
http://amsci-forum.amsci.org/archives/American-Scientist-Open-Access-For
um.html
     http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/

UNIVERSITIES and RESEARCH FUNDERS:
If you have adopted or plan to adopt a policy of providing Open Access
to your own research article output, please describe your policy at:
     http://www.eprints.org/signup/sign.php
     http://openaccess.eprints.org/index.php?/archives/71-guid.html
     http://openaccess.eprints.org/index.php?/archives/136-guid.html

OPEN-ACCESS-PROVISION POLICY:
     BOAI-1 ("Green"): Publish your article in a suitable toll-access
journal
     http://romeo.eprints.org/
OR
     BOAI-2 ("Gold"): Publish your article in an open-access journal
if/when
     a suitable one exists.
     http://www.doaj.org/
AND
     in BOTH cases self-archive a supplementary version of your article
     in your own institutional repository.
     http://www.eprints.org/self-faq/
     http://archives.eprints.org/
     http://openaccess.eprints.org/
Received on Mon Aug 06 2007 - 14:42:24 BST

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