Technically, it probably is better to regard the eprint request
Button as a function facilitating personal use rather than fair use.
(Stevan once used to call this the "fair use button.") The Copyright
Act of 1976 does not directly address personal use, as it does fair
use in Sec. 107, except in an addition that was later made to deal
with home audiotaping. The concept has arisen in some court cases,
most notably the Sony case involving "time-shifting" of videotaping
of TV shows for later viewing. But there remains a lot of debate
about what personal use covers. It will likely be a subject of much
discussion in the forthcoming hearings in Congress over comprehensive
reform of copyright law.
Sandy Thatcher
At 10:37 AM -0400 8/7/13, Stevan Harnad wrote:
If supplying eprints to requesters could
be <https://theconversation.com/neuroscientists-need-to-embrace-open-access-publishing-too-16736#comment_198916>delegated
to 3rd parties like Repository Managers to perform automatically,
then they would become violations of copyright contracts.
What makes
the <https://wiki.duraspace.org/display/DSPACE/RequestCopy>eprint-request
Button legal is the fact that it is the author who decides, in each
individual instance, whether or not to comply with an individual
eprint request for his own work; it does not happen automatically.
Think about it: If it were just the fact of requesters having to do
two keystrokes for access instead of just one (OA), then the
compliance keystroke might as well have been done by software rather
than the Repository Manager! And that would certainly not be
compliance with a publisher OA embargo. "Almost OA" would just
become 2-stroke OA.
No. What makes
the <https://wiki.duraspace.org/display/DSPACE/RequestCopy>eprint-request
Button both legal and subversive is
that <http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/0671.html>it
is not 3rd-party piracy (by either a Repository Manager or an
automatic computer programme)
but <http://eprints.soton.ac.uk/262893/1/resolution.html#9.1>1st-party
provision of individual copies, to individual requesters, for
research purposes, by the author, in each individual instance: the
latter alone continues the long accepted tradition of
reprint-provision by scholars and scientists to their own work.
If reprint-request cards had been mailed instead to 3rd-parties who
simply photocopied anyone's articles and mailed them to requesters
(with or without a fee) the practice would have been attacked in the
courts by publishers as piracy long ago.
The best way to undermine the Button as a remedy against publisher
OA mandates, and to empower the publishing lobby to block it, would
be to conflate it with 2-stroke 3rd-party OA!
That practice should never be recommended.
Rather, make crystal clear the fundamental difference between
1st-party give-away and 3rd-party rip-off.
[Parenthetically: Of course it is true that all these legal and
technical distinctions are trivial nonsense! It is an ineluctable
fact that the online PostGutenberg medium has made technically and
economically possible and easily feasible what was technically and
economically impossible in the Gutenberg medium: to make all
refereed research articles -- each, without exception, an author
give-away, written purely for research impact rather than royalty
income -- immediately accessible to all would-be users, not just to
subscribers: OA. That outcome is both optimal and inevitable for
research; researchers; their institutions; their funders; the R&D
industry; students; teachers; journalists; the developing world;
access-denied scholars and scientists; the general public; research
uptake, productivity, impact and progress; and the tax-payers who
fund the research. The only parties with whose interests that
optimal outcome is in conflict are the refereed-research
publishers who had been providing an essential service to research
in the Gutenberg era. It is that publishing "tail" that is now
trying to wag the research "dog," to deter and delay what is optimal
and inevitable for research for as long as possible, by invoking
Gutenberg-era pseudo-legal pseudo-technicalities to try to embargo
OA, by holding it hostage to their accustomed revenue streams
and modus operandi. OA mandates, the immediate-deposit clause, and
the eprint-request Button are the research community's means of
mooting these delay tactics and hastening the natural evolution to
the optimal and inevitable outcome in the PostGutenberg era.]
Sale, A., Couture, M., Rodrigues, E., Carr, L. and Harnad, S.
(2012) <http://eprints.ecs.soton.ac.uk/18511/>Open Access Mandates
and the "Fair Dealing" Button.
In: <http://www.utppublishing.com/Dynamic-Fair-Dealing-Creating-Canadian-Culture-Online.html>Dynamic
Fair Dealing: Creating Canadian Culture Online (Rosemary J. Coombe &
Darren Wershler, Eds.)
--
Sanford G. Thatcher
8201 Edgewater Drive
Frisco, TX 75034-5514
e-mail: s...@psu.edu
Phone: (214) 705-1939
Website: http://www.psupress.org/news/SandyThatchersWritings.html
Facebook: http://www.facebook.com/sanford.thatcher
"If a book is worth reading, it is worth buying."-John Ruskin (1865)
"The reason why so few good books are written is that so few people
who can write know anything."-Walter Bagehot (1853)
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