Re: Fair-Use/Schmair-Use...
) does not extend to entry into a commercial rental arrangement in respect of a computer program if: (a) the copy of the computer program was purchased by a person ( the program owner ) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994 ; and (b) the commercial rental arrangement is entered into in the ordinary course of a business conducted by the program owner; and (c) the program owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements in respect of computer programs, when the copy was purchased. From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of c.oppenh...@lboro.ac.uk Sent: Wednesday, 18 February 2009 1:06 AM To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] Fair-Use/Schmair-Use... I did say I would not comment further on this, but Arthur makes some incorrect claims. Moral Rights are nothing to do further copying, so are a red herring in this debate. Assigning copyright, incidentally, is NOT selling rights to copy and exploit. It is assigning rights to PREVENT OR AUTHORISE the copying and exploitation - somewhat different! As the owner of a house, I don't just have the right to live there, I also have the right to prevent third parties from entering or using my house. I don't have the right to use it for illegal purposes, such as growing cannabis plants. When I sell the house, I lose the right to live there or to prevent others from living there. So it's true the analogy with houses is not 100% perfect, but it is certainly closer than the idea of a 99 year lease that Arthur suggests. The idea that a Court would permit deposit in a Learning Repository is nonsense in UK law. There is no fair dealing for teaching in UK law, and that's why UK Universities have to pay a significant licence fee to copyright owners for permission to place copies of scholarly articles on their VLEs. Arthur wants to ignore laws just because they are complex/inconvenient. Good luck to him. But he shouldn't recommend such actions to others. That's called authorising infringement or just plain conspiracy in UK law. Charles Professor Charles Oppenheim Head Department of Information Science Loughborough University Loughborough Leics LE11 3TU Tel 01509-223065 Fax 01509 223053 e mail c.oppenh...@lboro.ac.uk From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Arthur Sale Sent: 17 February 2009 03:46 To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: Fair-Use/Schmair-Use... Charles I am glad to see you acknowledging now that assigning copyright is not the same as selling your house or car (physical objects). What an author is giving away is a set of restricted rights to copy and exploit. In the case of copyright assignment they are even giving away to movie and TV exploitation! Publishersÿÿ insistence on copyright assignment, which as Sally has pointed out is changing, is based on authorsÿÿ complaisance. The author, as with everyone one else on the planet, retains rights to fair use access and copying. Indeed the author cannot sell some author rights, such as moral rights. In house/car terms, I donÿÿt know how this would translate ÿÿ maybe in to a right to inspect the house at any time to allow copying for teaching or research purposes? Even stretching the metaphor, assigning copyright is more like an 99-year lease of your house. Depositing data in a repository, though not making it OA, is open to anyone. It is simply part of preserving what one has produced. I suspect that a court would even allow putting it on a Learning Repository, provided access was restricted for teaching purposes to enrolled students. I am sorry, but the existence of a complex law does no6t invalidate people behaving in contradiction to the law or bending it, when it is foolish. Witness jaywalkers in cities or people who momentarily minutely exceed the speed limit in their cars. Conscientious objectors as in WWII are another example. The law will adapt. It is so patently obvious that in most cases that copyright law has not kept up with the technology of the Internet, that it would be a very ÿÿcourageousÿÿ court that convicted someone of breaching copyright by having automated backup services, copying an article to a new computer, or deposition (restricted) in a repository. Regarding your penultimate paragraph, the law has changed recently and does change. Australian copyright law is an example. The issue here is that copyright in respect of music, TV, and other sold-for-profit works
Re: Fair-Use/Schmair-Use...
[ The following text is in the utf-8 character set. ] [ Your display is set for the iso-8859-1 character set. ] [ Some characters may be displayed incorrectly. ] Charles I am glad to see you acknowledging now that assigning copyright is not the same as selling your house or car (physical objects). What an author is giving away is a set of restricted rights to copy and exploit. In the case of copyright assignment they are even giving away to movie and TV exploitation! Publishersÿÿ insistence on copyright assignment, which as Sally has pointed out is changing, is based on authorsÿÿ complaisance. The author, as with everyone one else on the planet, retains rights to fair use access and copying. Indeed the author cannot sell some author rights, such as moral rights. In house/car terms, I donÿÿt know how this would translate ÿÿ maybe in to a right to inspect the house at any time to allow copying for teaching or research purposes? Even stretching the metaphor, assigning copyright is more like an 99-year lease of your house. Depositing data in a repository, though not making it OA, is open to anyone. It is simply part of preserving what one has produced. I suspect that a court would even allow putting it on a Learning Repository, provided access was restricted for teaching purposes to enrolled students. I am sorry, but the existence of a complex law does no6t invalidate people behaving in contradiction to the law or bending it, when it is foolish. Witness jaywalkers in cities or people who momentarily minutely exceed the speed limit in their cars. Conscientious objectors as in WWII are another example. The law will adapt. It is so patently obvious that in most cases that copyright law has not kept up with the technology of the Internet, that it would be a very ÿÿcourageousÿÿ court that convicted someone of breaching copyright by having automated backup services, copying an article to a new computer, or deposition (restricted) in a repository. Regarding your penultimate paragraph, the law has changed recently and does change. Australian copyright law is an example. The issue here is that copyright in respect of music, TV, and other sold-for-profit works is not completely compatible with that of given-away-for-free works. The Australian Copyright Act recognises this. I think that the latest version of the Australian Copyright Act has gone a long way to handle these problems. I would be very surprised if it were unique. Arthur Sale From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of c.oppenh...@lboro.ac.uk Sent: Monday, 16 February 2009 9:24 PM To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] Fair-Use/Schmair-Use... Fair use/fair dealing allows an individual to make a copy for his/her own private study/research (and in a few countries, also for teaching); it also gives the author permission to pass a copy of the item on request to a colleague if that colleague requires it for research or private study. I never have argued otherwise. However, it does NOT give the person the right to put something up on a repository, (in many countries) on a Virtual Learning Environment, etc., without explicit permission from the copyright owner - assuming that its copyright has been given away. The law is an ass, but that doesn't give anyone the right to deliberately flout it. The same applies to motor cars, where just because you are able to drive it at 120 miles per hour whilst high on alcohol or drugs, because the technology allows you to, does not mean it is legal. I'd rather this list encouraged respect for the law, argued for changes in the law, argued for sensible negotiations with publishers rather than just ignoring the law. And as for the law catching up? If you mean, allowing users more flexibility, I rather fear that is in your dreams!! The pressure from rights owners (not publishers, but film, music, software, etc. industries) is to make copyright law even more in favour of them and to make the penalties for infringement more severe. In any case, as Stevan repeatedly points out, this list is for those interested in furthering the cause of OA and copyright is not its main focus. For that reason I do not propose to continue adding words to this particular discussion. Charles Professor Charles Oppenheim Head Department of Information Science Loughborough University Loughborough Leics LE11 3TU Tel 01509-223065 Fax 01509 223053 e mail c.oppenh...@lboro.ac.uk From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Arthur Sale Sent: 15 February 2009 01:00 To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: Fair-Use/Schmair-Use
Re: Fair-Use/Schmair-Use...
[ The following text is in the utf-8 character set. ] [ Your display is set for the iso-8859-1 character set. ] [ Some characters may be displayed incorrectly. ] I did say I would not comment further on this, but Arthur makes some incorrect claims. Moral Rights are nothing to do further copying, so are a red herring in this debate. Assigning copyright, incidentally, is NOT selling rights to copy and exploit. It is assigning rights to PREVENT OR AUTHORISE the copying and exploitation - somewhat different! As the owner of a house, I don't just have the right to live there, I also have the right to prevent third parties from entering or using my house. I don't have the right to use it for illegal purposes, such as growing cannabis plants. When I sell the house, I lose the right to live there or to prevent others from living there. So it's true the analogy with houses is not 100% perfect, but it is certainly closer than the idea of a 99 year lease that Arthur suggests. The idea that a Court would permit deposit in a Learning Repository is nonsense in UK law. There is no fair dealing for teaching in UK law, and that's why UK Universities have to pay a significant licence fee to copyright owners for permission to place copies of scholarly articles on their VLEs. Arthur wants to ignore laws just because they are complex/inconvenient. Good luck to him. But he shouldn't recommend such actions to others. That's called authorising infringement or just plain conspiracy in UK law. Charles Professor Charles Oppenheim Head Department of Information Science Loughborough University Loughborough Leics LE11 3TU Tel 01509-223065 Fax 01509 223053 e mail c.oppenh...@lboro.ac.uk From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Arthur Sale Sent: 17 February 2009 03:46 To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: Fair-Use/Schmair-Use... Charles I am glad to see you acknowledging now that assigning copyright is not the same as selling your house or car (physical objects). What an author is giving away is a set of restricted rights to copy and exploit. In the case of copyright assignment they are even giving away to movie and TV exploitation! Publishersÿÿ insistence on copyright assignment, which as Sally has pointed out is changing, is based on authorsÿÿ complaisance. The author, as with everyone one else on the planet, retains rights to fair use access and copying. Indeed the author cannot sell some author rights, such as moral rights. In house/car terms, I donÿÿt know how this would translate ÿÿ maybe in to a right to inspect the house at any time to allow copying for teaching or research purposes? Even stretching the metaphor, assigning copyright is more like an 99-year lease of your house. Depositing data in a repository, though not making it OA, is open to anyone. It is simply part of preserving what one has produced. I suspect that a court would even allow putting it on a Learning Repository, provided access was restricted for teaching purposes to enrolled students. I am sorry, but the existence of a complex law does no6t invalidate people behaving in contradiction to the law or bending it, when it is foolish. Witness jaywalkers in cities or people who momentarily minutely exceed the speed limit in their cars. Conscientious objectors as in WWII are another example. The law will adapt. It is so patently obvious that in most cases that copyright law has not kept up with the technology of the Internet, that it would be a very ÿÿcourageousÿÿ court that convicted someone of breaching copyright by having automated backup services, copying an article to a new computer, or deposition (restricted) in a repository. Regarding your penultimate paragraph, the law has changed recently and does change. Australian copyright law is an example. The issue here is that copyright in respect of music, TV, and other sold-for-profit works is not completely compatible with that of given-away-for-free works. The Australian Copyright Act recognises this. I think that the latest version of the Australian Copyright Act has gone a long way to handle these problems. I would be very surprised if it were unique. Arthur Sale From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of c.oppenh...@lboro.ac.uk Sent: Monday, 16 February 2009 9:24 PM To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] Fair-Use/Schmair-Use... Fair use/fair dealing allows an individual to make a copy for his/her own private study/research (and in a few countries, also for teaching); it also gives the author permission to pass a copy of the item on request to a colleague if that colleague requires
Re: Fair-Use/Schmair-Use...
2009/2/16 Stevan Harnad amscifo...@gmail.com: I wish Mr. Graf well in his goal of copyright reform. I urge him to pursue it through some more positive, practical means than just disparaging Green OA. Meanwhile, we have heard his views repeatedly on this Forum (which is a Forum devoted to practical OA policy-making) and I urge him to post again if and when he has something constructive and substantive to say about policies that will accelerate or facilitate our reaching universal OA. I do not accept your explanation of my motives and especially the connection with my advocating of re-use and fair copyright. As a list moderator you don't have the right to decide if my contributions are constructive and substantive. Most of your own contributions are only dogmatic repetitions of your well known position and therefore either constructive nor substantive. You have censored my contributions in the past several times. You should consider that nobody gave you the right to decide what is right or wrong. You are playing god instead of fair moderating this list. Klaus Graf
Re: Fair-Use/Schmair-Use...
[ The following text is in the utf-8 character set. ] [ Your display is set for the iso-8859-1 character set. ] [ Some characters may be displayed incorrectly. ] Fair use/fair dealing allows an individual to make a copy for his/her own private study/research (and in a few countries, also for teaching); it also gives the author permission to pass a copy of the item on request to a colleague if that colleague requires it for research or private study. I never have argued otherwise. However, it does NOT give the person the right to put something up on a repository, (in many countries) on a Virtual Learning Environment, etc., without explicit permission from the copyright owner - assuming that its copyright has been given away. The law is an ass, but that doesn't give anyone the right to deliberately flout it. The same applies to motor cars, where just because you are able to drive it at 120 miles per hour whilst high on alcohol or drugs, because the technology allows you to, does not mean it is legal. I'd rather this list encouraged respect for the law, argued for changes in the law, argued for sensible negotiations with publishers rather than just ignoring the law. And as for the law catching up? If you mean, allowing users more flexibility, I rather fear that is in your dreams!! The pressure from rights owners (not publishers, but film, music, software, etc. industries) is to make copyright law even more in favour of them and to make the penalties for infringement more severe. In any case, as Stevan repeatedly points out, this list is for those interested in furthering the cause of OA and copyright is not its main focus. For that reason I do not propose to continue adding words to this particular discussion. Charles Professor Charles Oppenheim Head Department of Information Science Loughborough University Loughborough Leics LE11 3TU Tel 01509-223065 Fax 01509 223053 e mail c.oppenh...@lboro.ac.uk From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Arthur Sale Sent: 15 February 2009 01:00 To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: Fair-Use/Schmair-Use... I agree with Stevan. A simple reading of copyright law in some countries does imply that if you sign away copyright you cannot make copies. But there are many exceptions, including fair use. And the law is an ass. In most cases it has not caught up with the reality of IT and in any case it must be read in conjunction with other law. In practice, when I submit a paper to a journal there will be a copy on my laptop, my home computer and my work PC (not to mention a possible copy on a memory stick). The copy in a repository follows soon after, to satisfy the record-keeping requirements. In the ensuing days and weeks, other copies are directly created by the automated back-up process at university (including the repository) and stored somewhere. Multiple copies are made en route to the publisher and back. Only an insane publisher would contest any of this. They would expect me to keep my article safe and backed up, just in case. They would also know that any court would throw a case contesting normal record-keeping and ICT practice out of the window. The Australian Copyright Act is pretty up to date in this respect and covers this, as in the extract below and elsewhere. The red is my annotation. Note that this is Section 200 of the Copyright Act! I write this at the risk of suggesting that more angels can dance on the head of a pin than is commonly thought of. We need to do what is sensible and wait for the law to catch up, as it will eventually. Arthur Sale COPYRIGHT ACT 1968 - SECT 200AB Use of works and other subject-matter for certain purposes (1) The copyright in a work or other subjectÿÿmatter is not infringed by a use of the work or other subjectÿÿmatter if all the following conditions exist: (a) the circumstances of the use (including those described in paragraphs (b), (c) and (d)) amount to a special case; (b) the use is covered by subsection (2), (3) or (4); (c) the use does not conflict with a normal exploitation of the work or other subjectÿÿmatter; (d) the use does not unreasonably prejudice the legitimate interests of the owner of the copyright. Use by body administering library or archives (2) This subsection covers a use that: (a) is made by or on behalf of the body administering a library or archives; and (b) is made for the purpose of maintaining or operating the library or archives (including operating the library or archives to provide services of a kind usually provided by a library or archives); and (c
Re: Fair-Use/Schmair-Use...
[ The following text is in the UTF-8 character set. ] [ Your display is set for the iso-8859-1 character set. ] [ Some characters may be displayed incorrectly. ] I agree with Stevan. A simple reading of copyright law in some countries does imply that if you sign away copyright you cannot make copies. But there are many exceptions, including fair use. And the law is an ass. In most cases it has not caught up with the reality of IT and in any case it must be read in conjunction with other law. In practice, when I submit a paper to a journal there will be a copy on my laptop, my home computer and my work PC (not to mention a possible copy on a memory stick). The copy in a repository follows soon after, to satisfy the record-keeping requirements. In the ensuing days and weeks, other copies are directly created by the automated back-up process at university (including the repository) and stored somewhere. Multiple copies are made en route to the publisher and back. Only an insane publisher would contest any of this. They would expect me to keep my article safe and backed up, just in case. They would also know that any court would throw a case contesting normal record-keeping and ICT practice out of the window. The Australian Copyright Act is pretty up to date in this respect and covers this, as in the extract below and elsewhere. The red is my annotation. Note that this is Section 200 of the Copyright Act! I write this at the risk of suggesting that more angels can dance on the head of a pin than is commonly thought of. We need to do what is sensible and wait for the law to catch up, as it will eventually. Arthur Sale COPYRIGHT ACT 1968 - SECT 200AB Use of works and other subject-matter for certain purposes (1) The copyright in a work or other subjectÿÿmatter is not infringed by a use of the work or other subjectÿÿmatter if all the following conditions exist: (a) the circumstances of the use (including those described in paragraphs (b), (c) and (d)) amount to a special case; (b) the use is covered by subsection (2), (3) or (4); (c) the use does not conflict with a normal exploitation of the work or other subjectÿÿmatter; (d) the use does not unreasonably prejudice the legitimate interests of the owner of the copyright. Use by body administering library or archives (2) This subsection covers a use that: (a) is made by or on behalf of the body administering a library or archives; and (b) is made for the purpose of maintaining or operating the library or archives (including operating the library or archives to provide services of a kind usually provided by a library or archives); and (c) is not made partly for the purpose of the body obtaining a commercial advantage or profit. Use by body administering educational institution (3) This subsection covers a use that: (a) is made by or on behalf of a body administering an educational institution; and (b) is made for the purpose of giving educational instruction; and (c) is not made partly for the purpose of the body obtaining a commercial advantage or profit. From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Stevan Harnad Sent: Saturday, 14 February 2009 10:31 PM To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] Fair-Use/Schmair-Use... On Sat, Feb 14, 2009 at 3:48 AM, Charles Oppenheim c.oppenh...@lboro.ac.uk wrote (in JISC-REPOSITORIES): Arthur [Sale] is wrong on his final point. When an author assigns copyright to a publisher, the author gives away all rights. It is equivalent to selling your house, your car or anything else. Once you've sold it, you've no right to enjoy it's use any more, even though you were the previous owner. So when an author assigns copyright to a publisher, he or she has no rights to keep a back up copy, store it in a repository, etc., UNLESS the publisher graciously gives permission for the author to do so. But what the publisher cannot do is demand deletion, etc., of earlier drafts of the manuscript, because the author has only assigned the final accepted version to the publisher. With all due respect, if this were true, then the author could not keep and store a paper copy of the final draft of his book in his attic either (or, for that matter, his author's copy of the published book). And, as we all know, earlier drafts are a slippery slope. The penult, which is the refereed draft minus the copy-editing is an earlier draft. So is an author's draft incorporating corrections. No, the
Re: Fair-Use/Schmair-Use...
[ The following text is in the utf-8 character set. ] [ Your display is set for the iso-8859-1 character set. ] [ Some characters may be displayed incorrectly. ] The first step of the ÿÿthree step testÿÿ is important ÿÿ the use has to be a ÿÿspecial caseÿÿ (i.e. not systematic) Sally Sally Morris Partner, Morris Associates - Publishing Consultancy South House, The Street Clapham, Worthing, West Sussex BN13 3UU, UK Tel: +44(0)1903 871286 Fax: +44(0)8701 202806 Email: sa...@morris-assocs.demon.co.uk From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Arthur Sale Sent: 15 February 2009 01:00 To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: Fair-Use/Schmair-Use... I agree with Stevan. A simple reading of copyright law in some countries does imply that if you sign away copyright you cannot make copies. But there are many exceptions, including fair use. And the law is an ass. In most cases it has not caught up with the reality of IT and in any case it must be read in conjunction with other law. In practice, when I submit a paper to a journal there will be a copy on my laptop, my home computer and my work PC (not to mention a possible copy on a memory stick). The copy in a repository follows soon after, to satisfy the record-keeping requirements. In the ensuing days and weeks, other copies are directly created by the automated back-up process at university (including the repository) and stored somewhere. Multiple copies are made en route to the publisher and back. Only an insane publisher would contest any of this. They would expect me to keep my article safe and backed up, just in case. They would also know that any court would throw a case contesting normal record-keeping and ICT practice out of the window. The Australian Copyright Act is pretty up to date in this respect and covers this, as in the extract below and elsewhere. The red is my annotation. Note that this is Section 200 of the Copyright Act! I write this at the risk of suggesting that more angels can dance on the head of a pin than is commonly thought of. We need to do what is sensible and wait for the law to catch up, as it will eventually. Arthur Sale COPYRIGHT ACT 1968 - SECT 200AB Use of works and other subject-matter for certain purposes (1) The copyright in a work or other subjectÿÿmatter is not infringed by a use of the work or other subjectÿÿmatter if all the following conditions exist: (a) the circumstances of the use (including those described in paragraphs (b), (c) and (d)) amount to a special case; (b) the use is covered by subsection (2), (3) or (4); (c) the use does not conflict with a normal exploitation of the work or other subjectÿÿmatter; (d) the use does not unreasonably prejudice the legitimate interests of the owner of the copyright. Use by body administering library or archives (2) This subsection covers a use that: (a) is made by or on behalf of the body administering a library or archives; and (b) is made for the purpose of maintaining or operating the library or archives (including operating the library or archives to provide services of a kind usually provided by a library or archives); and (c) is not made partly for the purpose of the body obtaining a commercial advantage or profit. Use by body administering educational institution (3) This subsection covers a use that: (a) is made by or on behalf of a body administering an educational institution; and (b) is made for the purpose of giving educational instruction; and (c) is not made partly for the purpose of the body obtaining a commercial advantage or profit. From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Stevan Harnad Sent: Saturday, 14 February 2009 10:31 PM To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] Fair-Use/Schmair-Use... On Sat, Feb 14, 2009 at 3:48 AM, Charles Oppenheim c.oppenh...@lboro.ac.uk wrote (in JISC-REPOSITORIES): Arthur [Sale] is wrong on his final point. When an author assigns copyright to a publisher, the author gives away all rights. It is equivalent to selling your house, your car or anything else. Once you've sold it, you've no right to enjoy it's use any more, even though you were the previous owner. So when an author assigns copyright to a publisher, he or she has no rights to keep a back up copy, store
Re: Fair-Use/Schmair-Use...
On Sun, Feb 15, 2009 at 6:16 AM, Sally Morris (Morris Associates) sa...@morris-assocs.demon.co.uk wrote: The first step of the 'three step test' is important - the use has to be a 'special case' (i.e. not systematic) The non-systematicity is in the author's individual, case-by-case decision as to whether or not to fulfill each individual would-be user's eprint request, exactly as was the case for a half century's worth of reprint-requests sent by post. In the online era, would-be users send email instead of sending post, and they are alerted of the existence of the eprint not by skimming Current Contents or its alerting service, but by skimming the harvester of the metadata from (Open and) Closed Access deposits in IRs. That's all there is to it. And the non-systematicity is precisely the same non-systematicity it has always been. The IR Button is merely the 21st century's technological equivalent of the ISI's request-a-print service... This is, as usual, the researcher's own discretionary right to send his own research findings to any user he judges fit -- and woe betide any publisher who has the faintest glimmer in his imagination of the thought that the right of the publisher -- and the purpose of research publication -- is to constrain in any way the author's right to decide systematically whether or not to send a free copy of his own findings to a would-be user for research purposes. Amen, Stevan Harnad Sally Sally Morris Partner, Morris Associates - Publishing Consultancy South House, The Street Clapham, Worthing, West Sussex BN13 3UU, UK Tel: +44(0)1903 871286 Fax: +44(0)8701 202806 Email: sa...@morris-assocs.demon.co.uk From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Arthur Sale Sent: 15 February 2009 01:00 To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: Fair-Use/Schmair-Use... I agree with Stevan. A simple reading of copyright law in some countries does imply that if you sign away copyright you cannot make copies. But there are many exceptions, including fair use. And the law is an ass. In most cases it has not caught up with the reality of IT and in any case it must be read in conjunction with other law. In practice, when I submit a paper to a journal there will be a copy on my laptop, my home computer and my work PC (not to mention a possible copy on a memory stick). The copy in a repository follows soon after, to satisfy the record-keeping requirements. In the ensuing days and weeks, other copies are directly created by the automated back-up process at university (including the repository) and stored somewhere. Multiple copies are made en route to the publisher and back. Only an insane publisher would contest any of this. They would expect me to keep my article safe and backed up, just in case. They would also know that any court would throw a case contesting normal record-keeping and ICT practice out of the window. The Australian Copyright Act is pretty up to date in this respect and covers this, as in the extract below and elsewhere. The red is my annotation. Note that this is Section 200 of the Copyright Act! I write this at the risk of suggesting that more angels can dance on the head of a pin than is commonly thought of. We need to do what is sensible and wait for the law to catch up, as it will eventually. Arthur Sale COPYRIGHT ACT 1968 - SECT 200AB Use of works and other subject-matter for certain purposes (1) The copyright in a work or other subject-matter is not infringed by a use of the work or other subject-matter if all the following conditions exist: (a) the circumstances of the use (including those described in paragraphs (b), (c) and (d)) amount to a special case; (b) the use is covered by subsection (2), (3) or (4); (c) the use does not conflict with a normal exploitation of the work or other subject-matter; (d) the use does not unreasonably prejudice the legitimate interests of the owner of the copyright. Use by body administering library or archives (2) This subsection covers a use that: (a) is made by or on behalf of the body administering a library or archives; and (b) is made for the purpose of maintaining or operating the library or archives (including operating the library or archives to provide services of a kind usually provided by a library or archives); and (c) is not made partly for the purpose of the body obtaining a commercial advantage or profit. Use by body administering educational institution (3) This subsection covers a use
Re: Fair-Use/Schmair-Use...
On Sun, Feb 15, 2009 at 10:24 AM, Klaus Graf klausg...@googlemail.com wrote: As I have shown at http://archiv.twoday.net/stories/5193609/ the Request button isn't legal in Germany. (1) I regret to point out that -- like everyone else in this discussion -- you have not shown, you have merely asserted. Your Request-button-ideology is based on pure arbitrariness. (2) The Button is not ideology, it is concrete, implemented, practical technology: click here If the author only has the mail adress of the requester and no university affiliation - what are the criteria to decide? Random? (3) For screen shots showing how the eprint-requester can (as in all reprint-request cards for over a half-century) indicate, if he wishes, his institution and his reasons for the request, click here. Or simply NO - ...most scholars in my several tests have'nt reacted on my request button tests. (4) Mr. Graf, I cannot explain why some of the authors from whom you have requested eprints have declined to fulfill your eprint-request. (5) The decision to send a reprint or eprint is a discretionary one, on the part of the author, and that is exactly how it should be. Stevan Harnad
Re: Fair-Use/Schmair-Use...
2009/2/15 Stevan Harnad amscifo...@gmail.com: On Sun, Feb 15, 2009 at 10:24 AM, Klaus Graf klausg...@googlemail.com wrote: As I have shown at http://archiv.twoday.net/stories/5193609/ the Request button isn't legal in Germany. I have serious doubts that you have the knowledge to refute my legal interpretations of German copyright law. How many years have you studied German copyright law? I am not a lawyer but experienced in this field since 1989. Or simply NO - ...most scholars in my several tests have'nt reacted on my request button tests. (4) Mr. Graf, I cannot explain why some of the authors from whom you have requested eprints have declined to fulfill your eprint-request. Every one can repeat my little experiment with a mail adress not indicating his name or affiliation. I am sure that a harvard.edu adress will have higher rates. Writing in English to an Quebec scientist will have very low rates. I am sure that some racist Mississipi scholars will be unwillingly to fulfill a request from a Mohammed N. OA means: each scholar with internet access has the same chance to get the paper. Thus it is clear that your request-button-ideology has NOTHING to do with OA. (5) The decision to send a reprint or eprint is a discretionary one, on the part of the author, and that is exactly how it should be. Basing an OA instrument which you falsely think it is important on personal motives is unethical. Basing the ability to get a urgently needed medical article in let us say Gambia on the discretion of wealthy scholars in the US which are free in their decision and their prejudices is unethical. Each day people die because there isn't OA for medical literature. Any delay of OA and especially propagating a random generator called request-button is immoral. The decision to deposit an eprint is a discretionary one, on the part of the author, and that is exactly how it should be. This would also be academic freedom. Klaus Graf
Re: Fair-Use/Schmair-Use...
[This message was posted on JISC-REPOSITORIES and is reproduced here on the request of the AMSCI moderator.] On 15 Feb 2009, at 19:56, Charles Oppenheim wrote on the JISC- REPOSITORIES mailing list: I agree that the publisher cannot demand destruction of copies made PRIOR to the assignment, but can rightly object to any subsequent copying by anyone, including the original author. Charles' contributions to this discussion are stark, but make it clear what the bottom line is in copyright law. If you have copyright, you have the automatic right to make copies. If you don't have copyright, you don't have the automatic right to make copies. From other contributors, we know that a literal and unyielding Status: O interpretation of this law would make digital and online activities impossible. We also know that publishing companies do not demand such draconian restrictions on authors' activities. The web has changed many things about the dissemination of information: the expectation of copying as a fundamental part of the transmission mechanism, the expectation of indexing and searching as a fundamental part of information provision, the expectation of open access to public funded information, the emergence of the knowledge commons. The law has not yet caught up with these changes in society. It hasn't even caught up with the personal computer revolution, let alone the Internet, the Web, Web 2.0, the Semantic Web or the cloud. That's an awfully big backlog of technology and emerging social practice to accommodate in our legislation, and frankly there just aren't enough legal minds on the job at the moment. Most legal positions in the online and digital arenas are compromises, fudges and emerging social agreements between parties. So it is inevitable that repository staff are going to encounter problems when faced with institutional managers who want definitive answers, cast- iron guarantees and legal certainties. What we can provide instead is the reassurance of a decade and a half of repository practice and case history, emerging (and emerged) institutional policy, custom and procedure. We (the repository community, JISC, funding councils and institutions) should continue to work together to agree reasonable practices that enable our own industry (the research industry) to flourish, develop and compete internationally while allowing its service industry (the primary and secondary publishing companies) the space to build appropriate businesses that will facilitate that aim. -- Les Carr Lecturer, Researcher, Repository Manager, Repository Developer, Open Access Advocate Co-Director of the UK EPSRC Doctoral Training Centre in Web Science, set up to examine the impact of the Web on society and vice versa. But not a lawyer.
Re: Fair-Use/Schmair-Use...
On Sun, Feb 15, 2009 at 12:50 PM, Klaus Graf klausg...@googlemail.com wrote: Klaus Graf: Every one can repeat my little experiment with [the Button, using] a mail adress not indicating his name or affiliation OA means: each scholar with internet access has the same chance to get the paper. Thus it is clear that your request-button-ideology has NOTHING to do with OA. As noted quite prominently on every occasion it has been mentioned, the eprint request Button is not OA, it is Almost OA (because it is neither instantaneous access nor 100% reliable access). But it certainly has a great deal to do with OA, and it is worthwhile reminding those who have forgotten or not understood that the purpose of the Button is four-fold: (1) The first purpose of the Button is to make it possible for all institutions and funders to mandate immediate deposit (upon acceptance for publication) of all their refereed research output, not just the 63% that already has the publisher's blessing to make the deposit immediately OA. The remaining 37%, too, can be immediately deposited, but with access set as Closed Access instead of Open Access, if the author wishes, during the publisher embargo period. The Button then allows the author to provide Almost OA for the Closed Access 37% during the embargo. (2) This not only provides Almost-OA for the would-be users worldwide needing access to the remaining 37%, but it makes it possible for institutions and funders to adopt an exception-free, no-opt-out, immediate-deposit requirement covering all of their refereed research output, irrespective of publisher policy. Many institutions and funders have not succeeded in arriving at an agreement on adopting a mandate at all yet, simply because they did not know what could be done about the 37% that did not have the publisher's blessing. (3) It also provides a far better solution for the immediate ongoing needs of research and researchers worldwide during the embargo period allowed by current Green OA mandates, (a) to couple them with an immediate-deposit requirement for 100% of output, plus the Button for the embargoed 37% of it, than (b) either to allow opt-outs or to allow deposits to be delayed until the end of the allowable embargo period. 63% Immediate OA plus 37% Almost-OA is incomparably better than no access at all during the embargo period, and/or deposit only after the allowable embargo. (4) Once Immediate Deposit Mandates plus the Almost-OA Button become universal, the universal practice of performing immediate deposit and enjoying Immediate OA to at least 63% of all research output and Immediate Almost-OA to the rest, along with the universally palpable benefits of OA will generate mounting and irresistible global pressure to make all research output Immediate OA, and that will follow inexorably. All we need first is universal adoption of the Immediate-Deposit mandates. (Only keystrokes separate us from Universal OA, and the mandated mandate those all-important keystrokes!) Now, having explained (yet again) the importance of the Button toward the successful adoption and implementation of universal Green OA mandates, I will try to explain to the puzzled reader (yet again) why Mr. Graf is at such pains to disparage the Almost OA Button as well as to invoke German Copyright Law against Green OA Mandates: Mr. Graf is seeking something more than OA. His goal is broad licensed re-use rights, and he is seeking them for far more than just OA's target content (refereed journal articles). He has accordingly concluded that the only way to achieve all of that is by reforming copyright law so as to allow (or perhaps require) it. He unfortunately does not offer a practical strategy for how to get all authors, publishers and governments worldwide (or even just in Germany!) to agree to adopt the copyright reforms he thinks are necessary (let alone a strategy that has already been adopted by 65 institutions and governmental funders worldwide, and is being proposed or considered by many more). But Mr. Graf does feel that it might be helpful to invoke (his interpretation) of current (German) copyright law and his own lack of success in getting some authors to respond to his Button-requests to try to show that the Green Road, leading toward something short of what he regards as the right target destination, is impassable. Fair enough. We all have our ends, and means. In my view, Mr Graf is mistaken, but it is unlikely that he will stop trying to show that Green OA does not work until he finds a Road that is at least as likely to lead to his own preferred destination. In the meanwhile, however, his objections seem to be getting shriller:
Re: Fair-Use/Schmair-Use...
On Sat, Feb 14, 2009 at 3:48 AM, Charles Oppenheim c.oppenh...@lboro.ac.uk wrote (in JISC-REPOSITORIES): Arthur [Sale] is wrong on his final point. When an author assigns copyright to a publisher, the author gives away all rights. It is equivalent to selling your house, your car or anything else. Once you've sold it, you've no right to enjoy it's use any more, even though you were the previous owner. So when an author assigns copyright to a publisher, he or she has no rights to keep a back up copy, store it in a repository, etc., UNLESS the publisher graciously gives permission for the author to do so. But what the publisher cannot do is demand deletion, etc., of earlier drafts of the manuscript, because the author has only assigned the final accepted version to the publisher. With all due respect, if this were true, then the author could not keep and store a paper copy of the final draft of his book in his attic either (or, for that matter, his author's copy of the published book). And, as we all know, earlier drafts are a slippery slope. The penult, which is the refereed draft minus the copy-editing is an earlier draft. So is an author's draft incorporating corrections. No, the new medium has features that cannot be coherently, let alone confidently described, let alone prescribed and proscribed, in this papyrocentric way. The self-archiving computer scientist (since the 80's) and physicist (since the '90s) authors had it right: Don't ask, Don't Tell, Don't Fret, Just Do. Otherwise you will elicit a welter of inconsistent, and in many cases incoherent opinion and counter-opinion whilst you languish in a chronic state of Zeno's Paralysis (as 85% of us foolishly persist in doing, for nigh on two decades now). And while I'm in the pulpit, let me also point out that the main reason for deposit mandates is not to force research authors to do something they don't really want to do (a few extra bureaucratic keystrokes, as some of the stalwart defenders of academic freedom seem to imagine), for they all want to maximise the usage and impact of their research (as a half-century of keystrokes fulfilling reprint-requests proves): It is to free these special authors from the irrational inhibitions that keep them in their state of Zeno's Paralysis. Apologies for this interruption. Please return to your solemn discussion of angels, heads and pins... Stevan Harnad Charles On Sat, 14 Feb 2009 15:01:59 +1100 Arthur Sale a...@ozemail.com.au wrote: Talat Let me assure you that you should credit that a court would accept a case that repositories fulfil other functions. Indeed in Australia we could argue that they are required by the Federal Government for the purpose of institutional publication reporting and research evaluation. Tasmanian law requires the university to keep records for long-term preservation under the Archives Act and so do most States. The other point you miss is that publishers have no rights to prohibit a restricted copy being mounted in a repository. If an author chooses to keep a copy of his or her article in one computer system or another (or is required to place a copy in a particular one) is of no concern whatsoever to a publisher. They might as well demand that the author delete the manuscript from their personal PC once it has been published! Indeed my departmental backup system makes regular copies from my PC somewhere and I don't bother enquiring where, nor does any publisher of my work. Neither do they demand that a particular filing cabinet be used for any paper drafts. None of this is of any concern to a publisher. You and I have had this argument before and you persist in this view, but it cannot go unchallenged if you keep making it. It does not stand up to examination. Arthur Sale University of Tasmania
Re: Fair-Use/Schmair-Use...
On Wed, 22 Aug 2007, Sandy Thatcher wrote: I actually agree, too, that the practice of an author sharing a paper with another researcher who requests it, one request at a time, should be considered as fair use-and should be allowed by all publishers anyway. But Stevan doesn't tell us what limits, if any, he puts on authors' distributing their articles once a contract has been signed and rights transferred. Does he, for instance, condone responding to a request to have the article posted on a listserv to 1,000 people subscribed to that listserv? No, we're talking about one-on-one, individual sending of individual eprints on individual request, for research use. Does he think it is ok for an author to sell an article for use in a course pack for a large course in a non-profit university, or in a for-profit university (like Phoenix)? Absolutely not. We are talking about authors giving (not selling) individual copies of their own postprints, for research use. Publishers would rightly object to the latter, but theoretically Stevan's Fair Use Button could be used to respond to such a request. Someone could design a sales button, but we certainly haven't. The EPrints Fair Use Button simply emails a free copy if the author agrees to the request. (This is about OA, remember?) And if Stevan doesn't think the latter is fair use, then isn't that a request for permission that he would then deny through his device? It's not a request for permission; it's a request for a copy (and an offer to provide it). No one spoke about selling eprints. If someone wanted to teach a course with my eprint, I'd send the requester a copy. I'd send it to individual students requesting it too. Putting it in a course pack on the other end is not my business, and is between the one who is trying to make that use of it, and the publisher. What I called (and continue to call) Fair Use is my sending it to the requester, and the requester receiving, downloading, storing and reading it for his own individual use. I have no views on the other uses except to say that this is all just interim nonsense, and that this coy, absurd Fair Use interregnum -- in which 38% of postprints are ceremoniously deposited as Closed Access instead of Open Access because of an embargo, and are distributed instead via the Fair Use Button -- will soon pass, and 100% of deposits will be immediately deposed as Open Access, as they should have been all along. It is merely a sop, for those who can't bring themselves to mandate immediate OA for all research output. Stevan then would, in effect, be doing what any publisher does, viz., responding to individual requests and making judgments about what to allow for free and what to charge for or deny. I, and the millions of other authors who have responded to reprint and eprint requests by mail and email for over 5 decades would be making judgments about whom to send eprints to and whom not. That's all. Cheers, Stevan
RE: Fair-Use/Schmair-Use...
On Wed, 22 Aug 2007, Velterop, Jan, Springer UK wrote: Peter Hirtle is right. Since a long time I have held the view that -- at least in the realm of peer-reviewed research publication -- copyright, particularly its transfer from author to publisher, is essentially used as a proxy for money. Often combined with real money in the form of e.g. page charges. Together, the transfer of copyright and real money charges are the price an author pays for the service of having his research formally published in a peer-review journal, which he needs, inter alia, for career and prospective funding purposes. Actually (lest we forget), it's journal subscriptions that are paying for all that. (And what the researcher/author needs in the online era is just peer review. And that's what he's paying for by letting the publisher charge to sell his work through the subscriptions, without even having to pay a penny of royalties to the author. And that's also what the peers are providing their review services (free) to the publisher to help subsidize. Jan's long-held view is a complacent one: It makes it seem as if the author and the referees are all supplicants to the publisher...) One could see the use of copyright as a proxy for money as inappropriate, but certainly in the print era it was a pragmatic and workable way of supporting the system of peer-reviewed formal research journals. Copyright, the property of the publisher after transfer, was converted into real money by exploiting the exclusive right to sell (access to) the material. In the print era, subscription tolls were necessary in order to provide access at all. And paper distribution and access was costly. In the online era publishers are no longer needed in order to provide access. They are only needed to provide (i.e., implement) peer review. In the web world, the situation is different. First of all, authors can quite easily disseminate their articles themselves on the web. That doesn't make them formally published in a peer-reviewed journal, but it does the job of spreading the knowledge. This is what preprints do, or at least can do (terribly antiquated word, 'preprints', but let's ignore that for now). To repeat, what authors want is peer review. Peers review for free. The publisher manages the process. In exchange they get to sell the paper and online edition without even having to pay author royalties -- but not to block the author from giving away his own work to those would-be users who can't afford subscription access. Remains the issue of formal, official, publishing in a peer-reviewed journal. On the 'other planet' authors seem to expect publishers of journals to formally publish their articles in peer-reviewed journals (the reputations of which often took a long time to build up) for free, and to regard it as a right subsequently to be able just to add the label formally published in journal XYZ to their preprints in order to give those the needed authority and trustworthiness. The Hop on the bus, Gus, the other suckers have paid for us school of thought. Jan seems to keep forgetting that on this planet publishers are making ends meet, handily, by selling subscriptions. Open access is fundamentally incompatible with the use of copyright as a proxy for money to pay for formal peer-reviewed publication. I favour the transition to paying with plain money, and open access will be the entirely natural outcome of that. Technical and procedural problems exist, to be sure. But if the choice is between trying to solve those or to evade or even deny them, my vote goes to solving them. As I have replied to Jan many, many times before, publishers can and will be paid for peer review once researchers' institutions are no longer being paid for it many times over by subscriptions (but not before). The institutional subscription savings windfall will pay for the peer review many times over. Right now, though, subscriptions are still paying the (entire) bill (and its for a lot more than peer review). And authors can and will and should already provide access to their work to all would-be users who cannot afford the subscription access. Research is funded and conducted for usage and impact, not in order to keep supporting publishers in the manner to which they have become accustomed. Stevan Harnad
Re: Fair-Use/Schmair-Use...
On Wed, 22 Aug 2007, Sandy Thatcher wrote: For a scientist, Stevan, you sometimes make some astonishingly broad generalizations. E.g., in response to Rick Anderson you wrote: At 4:18 PM -0400 8/15/07, Stevan Harnad wrote: (b) Every single one of those articles (without exception, and in stark contrast to the rest of the digital domain) is written, and always has been written, purely for the sake of research usage and impact, not for royalty income. (d) All these authors want only three things: (1) to have their papers peer-reviewed by an established peer-review authority (with a track-record for quality and rigor) and (2) to have those peer-reviewed papers (certified as such, by the name of the journal that implemented the peer review) accessible online to every potential user on the planet, with absolutely nothing blocking their (online) access -- least of all whether the would-be user's institution happens to be able to afford to pay for subscription access to the journal in which it happened to be published. Well, I can tell you of some authors whose articles we have published in our scholarly journals who have profited handsomely (in the thousands of dollars) from frequent reproduction of their articles in commercial anthologies and university course packs. (In one case recently we received a payment of $14,000 from CCC for a large amount of copying done from an edited volume in a number of universities overseas.) They have all cashed the checks we sent them, so presumably they did want the money even though they weren't motivated originally to write by the pursuit of profit. Simple reply: (1) That's certainly not the reason those authors wrote those articles. (2) I didn't say researchers (or anyone) would not welcome a windfall bonus, if it happens. (3) How often do you think this kind of windfall hits the authors of the annual 2.5 million articles published in the planet's 25,000 peer-reviewed journals? Below you say I'm confused about fair use in your Fair Use Button because I really don't like the implication it might have for books. Well, as I've just said in response to Peter's posting, I have no problem with an author supplying a colleague with a single copy of an article for research and teaching purposes, so we have no disagreement there in principle. So what are we arguing about? (See my questions about responding to requests resulting in multiple-copy distributions, however.) See my reply: The Fair Use Button is for free, one-on-one copies. But you are simply wrong that book authors are not interested in giving away their book content for free. I didn't say none were. I just said many (most) aren't, whereas all journal-article authors. without exception, are. In university press publishing many authors are paid no royalties, and some are even asked to supply subsidies, and these authors would have no compunction about giving away their books for free. They could readily fall under your three points about what scholarly authors really want. Eventually such books will probably come under the OA banner. But right now, the only exception-free give-away domain is journal articles, and that is where OA needs to focus first. Even some high-profile authors like Larry Lessig and Yochai Benkler have persuaded their publishers to allow them to post their books online for free. So, as a generalization, that is much too broad. My generalization was perfectly correct: All journal articles are author give-aways; not all books are. That's all. So, too, is your flat assertion that books are not peer reviewed. I guess you're not aware that to be a member of the Association of American University Presses a university-based publisher MUST have a process of peer review in place, and every book published by an AAUP-member press is peer reviewed. I don't think the academic community will agree with you that books are peer-reviewed publications. Books are reviewed, sometimes rigorously. But that is not what is considered peer-reviewed publication by the academic community. To repeat: There are potential affinities between the peer-reviewed journal article literature and certain scholarly/scientific books, and OA will no doubt generalize from the former to some of the latter eventually. But not yet. OA first has to prevail on its own exception-free home turf: peer-reviewed research journal articles, written for research impact, not for royalty income, without exception. That's about 8,000 per year! Add to that the many thousands more published by academic commercial publishers, which may not be required to conduct peer review but generally do. So, peer review is NOT a differentiating factor between scholarly journals articles and scholarly books. Sandy, nothing much hinges on this, but please conduct a poll on whether a research finding can be characterised as peer-reviewed if it appears in a book rather than a peer-reviewed
Re: Fair-Use/Schmair-Use...
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
Re: Fair-Use/Schmair-Use...
On Sat, 18 Aug 2007, adam hodgkin wrote: On most of the substantial points in the Open Access debate I find myself in complete agreement with Steven Harnad. But on this issue it seems to me plain that Sandy Thatcher has the argument won. Hands down, fair and square. Furthermore, there most clearly is scope for debate about the role of 'fair use' in the internet age. The application of this legal term, and the others mentioned by SH, may be transformed by new technology but they are not redundant. Fair Use/Fair Dealing is in fact a particularly important concept in this transition to a web-based research environment -- because it is the appeal to fair use which allows but also limits the extent to which prior work can be appropriated and redirected in the new communication platform.For example, if the currently contested Google Book Search issues come to a judicial resolution, it is very likely that the judges involved will give some consideration to the role of Fair Use/Fair Dealing in an environment in which printed texts can be automatically ingested, processed and re-used by machines and their software. As I keep stressing: on books, music, video, software and other forms of digital content, nolo contendere, and all the old terminology can and will be thrashed to and fro. But peer-reviewed research journal articles are different, always have been different, and for that content all five of these terms are moot, and there's no point in trying to resurrect them, or, worse, in trying to make the online era for that special content somehow try to fit them. Research journal articles are written to be given away and used and built upon; and free copies for all would-be users are the author's desideratum, not access-royalties, copy restrictions, or fair use. As far as the author is concerned, all (attributed) use of the (uncorrupted) text is and always has been fair use. And in the online era, the author (and the peer reviewers) are the only ones whose needs count. Researchers do not publish their articles in order to generate sales revenues for the publishing industry (or themselves). Stevan Harnad Adam -- Forwarded message -- From: Sandy Thatcher s...@psu.edu Date: Aug 17, 2007 12:00 AM Subject: Re: Fair-Use/Schmair-Use... To: liblicens...@lists.yale.edu If there is anything fundamental to fair use, both in legal and even common sense terms, it is that a request for permission is NOT part of the process. But the Fair-Use Button is explicitly set up as a process for requesting permission from a potential user to the author. How this is transparent and not tortured is beyond me. It perverts the whole concept of fair use. Stevan, your stubborn adherence to this terminology IS potentially confusing, and it has nothing to do with the papyrocentric environment in which the concept was originally applied. In the online universe as well, fair use and asking permission are mutually exclusive. If there is anything incoherent going on here, it is your persistence in using a legal term to denote a process that is the exact opposite of what it is meant to denote. Sandy Thatcher Penn State University Press 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
