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 Researchers do not publish their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 <sgt3_at_psu.edu>
> Date: Aug 17, 2007 12:00 AM
> Subject: Re: Fair-Use/Schmair-Use...
> To: liblicense-l_at_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 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
>
>
Received on Sat Aug 18 2007 - 23:43:41 BST