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.
Harnad, Stevan (2001/2003) For Whom the Gate Tolls?
http://cogprints.org/1639/01/resolution.htm
Published as:
Harnad, Stevan (2003) Open Access to Peer-Reviewed
Research Through Author/Institution Self-Archiving:
Maximizing Research Impact by Maximizing Online Access.
In: Law, Derek & Judith Andrews, Eds. Digital Libraries:
Policy Planning and Practice. Ashgate Publishing 2003.
Shorter version:
Harnad S. (2003) Journal of Postgraduate Medicine 49: 337-342.
French version:
Harnad, S. (2003) Ciélographie et ciélolexie:
Anomalie post-gutenbergienne et comment la résoudre.
In: Origgi, G. & Arikha, N. (eds) Le texte à l'heure
de l'Internet. Bibliotheque Centre Pompidou. Pp. 77-103.
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
Stevan Harnad
> Laurence W. Bebbington
> Team Leader (Law)/IS Copyright Officer
> Information services
> The University of Nottingham
> Nottingham
> NG7 2RD
>
> -----Original Message-----
> [mailto:owner-liblicense-l_at_lists.yale.edu] On Behalf Of Stevan Harnad
> Sent: 24 May 2007 01:44
> To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
> Subject: OA Mandates, Embargoes, and the "Fair Use" Button
>
> [Exchange posted with permission from Profs. Rentier and Oppenheim]
>
> On 21-May-07, Bernard Rentier, Rector, U Liege, wrote:
>
> >> Dear Stevan,
> >>
> >> Can you give me some references on the authors' rights to use the
> >> "Request eprint" button during the Editor's imposed embargo period in
>
> >> the green OA model ? Is it legal?
> >> Particularly after the author has given up his copyrights to the
> >> editor. Thanks
> >>
> >> Bernard
>
> Dear Bernard,
>
> Authors are entitled to distribute individual copies to reprint/eprint
> requesters on an individual basis. This is called "Fair Use." It is
> exactly the same thing that authors have been doing for 50 years, in
> responding to individual mailed reprints requests, except that these are
> email eprint requests.
>
> 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!
>
> The reply of my colleague Prof. Charles Oppenheim, an expert in these
> matters. follows below.
>
> Best wishes,
> Stevan Harnad
>
> On Tue, 22 May 2007, C.Oppenheim_at_lboro.ac.uk wrote:
>
> > "Fair use" in the USA, "fair dealing" in the UK ("private copying" in
> > continental Europe) are very similar but not identical concepts. In a
>
> > nutshell, they give a person the
> > right* to make a copy of a copyright item for their research or
> > private study (and also, in the USA only, for teaching purposes). It
> > also allows a person to request another person to make such a copy for
>
> > him/her. Thus I could email Bernard to ask him for a copy of an
> > article he has written. Bernard is entitled to make that copy and
> > send it to me if I want it for the purposes of research or private
> > study. It makes no difference if Bernard has assigned copyright in
> > the item to a journal publisher or not.
> >
> > Stevan is correct that this right* was the basis of delivering
> > p/copies and reprints to requesters in years gone by; the only
> > difference these days is that it is done electronically.
> >
> > Charles
> >
> > * Strictly speaking, a lawyer would emphasise that fair use/fair
> > dealing/private copying is not a "right", but "an exception to
> > copyright", but the distinction is meaningless in practice.
> >
> > Professor Charles Oppenheim
> > Head
> > Department of Information Science
> > Loughborough University
> > Loughborough
> > Leics LE1 3TU
>
>
Received on Fri May 25 2007 - 13:03:06 BST