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Yes of course "fair use" and similar exceptions to copyright allow one to
make a copy of item whose copyright is owned by someone else for oneself
for research or private study as long as that copying does not damage the
legitimate commercial interests of the copyright owner. But they do NOT
allow you to distribute the copies to anyone who asks for them - that right
always remains with the copyright owner. Dependng on the country's legal
systemm this is called "publication", "communication to the public",
"issuing copies to the public" and so on, and is always ifringement. Fair
dealing/fair use is for one's own private use.
That's why my simple solution - don't assign copyright to the publisher in
the first case - helps.
Charles
On Fri, 31 Jul 2009 15:22:06 -0400
Couture Marc <couture.marc_at_TELUQ.UQAM.CA> wrote:
> On Mon, Jul 27, 2009 at 7:19 AM,
>
> C.Oppenheim_at_lboro.ac.uk<C.Oppenheim_at_lboro.ac.uk
> <mailto:C.Oppenheim_at_lboro.ac.uk%3cC.Oppenheim_at_lboro.ac.uk>
> > wrote:
>
>
>
> >
>
> > CO: The query referred to cases where the author has
> > ASSIGNED
>
> > copyright to Sage. Sage then owns the copyright and is
> > perfectly
>
> > entitled to say what can be done with the article.
> > Crucially, if
>
> > something is not mentioned as permitted, it is
> > forbidden. So if you
>
> > have assigned copyright to Sage, you cannot do anything
> > other than
>
> > those things listed as permitted by Sage.
>
> >
>
>
>
> One should stress that no copyright owner can prevent a
> user doing something that is allowed under one of the
> so-called exceptions which are part of copyright laws,
> like fair use (in US) and fair dealing (in Canada, UK and
> Australia).
>
>
>
> For instance, US Copyright law (§107) states :
>
>
>
> [...] the fair use of a copyrighted work, including such
> use by reproduction in copies or phonorecords or by any
> other means specified by that section, for purposes such
> as criticism, comment, news reporting, teaching
> (including multiple copies for classroom use),
> scholarship, or research, is not an infringement of
> copyright.
>
>
>
> In the all the jurisdictions I mentioned, the exceptions
> allow for distribution of copies (and note that "copy" is
> in no way restricted to "print copy") on an individual
> basis for research purposes, as embodied in the
> traditional practice referred to by Harnad or, more
> recently, in the "request button",
>
>
>
> It is true that some criteria must be met for such a use
> to be considered fair, most notably the effect of the use
> upon the market. But should a case concerning the
> "fairness" of the request button be brought before a
> court, the publisher would have to demonstrate that this
> particular act has indeed significantly reduced its
> earnings. If it was the case, it would mean that the
> scenario of green OA endangering journals has become a
> reality, something that may happen in the future as
> Harnad (among others) dutifully points out.
>
>
>
> In the meantime, authors should not hesitate to send
> copies to those who are interested in (and don't have
> access to) their closed-access (embargoed or otherwise)
> scholarly articles: after all, one can hardly imagine
> other uses than research for these specialized works.
>
>
>
> I will conclude that there are other instances where
> copyright owners have tried to restrict the uses more
> than what these exceptions allow. In fact, much of the
> debate about the anti-copying measures that are part of
> Digital Rights Management (DRM) has focussed upon the
> fact that such measures, which were meant to restrict
> unlawful acts, will also restrict lawful ones. So we must
> remain alert (and somewhat sceptical) when trying to
> decipher what uses a publisher allow (or forbid).
>
>
>
> Marc Couture
>
> Télé-université (Université du Québec ? Montréal)
>
> mcouture_at_teluq.uqam.ca
> http://www.teluq.uqam.ca/spersonnel/mcouture/home.htm
> <http://www.teluq.uqam.ca/spersonnel/mcouture>
>
>
>
>
>
>
>
>
>
> De : American Scientist Open Access Forum
> [mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG]
> De la part de Stevan Harnad
> Envoyé : 27 juillet 2009 07:02
> À :
> AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
> Objet : "Authors Re-using Their Own Work"
>
>
>
>
>
> On 27-Jul-09, at 5:39 AM, [identity deleted] wrote:
>
>
>
>
>
> Hello Stevan,
>
> Could I ask you to have a quick look at SAGE's terms for
> "Authors Re-using Their Own Work"? It seems to me that
> it forbids the "email eprint request" button:
>
> http://www.sagepub.com/repository/binaries/journals/permissions/author_use
> .doc
> <http://www.sagepub.com/repository/binaries/journals/permissions/author_us
> e.doc>
>
> (The link is from this page:
> http://www.sagepub.com/journalsPermissions.nav
> <http://www.sagepub.com/journalsPermissions.nav> )
>
> It says you can distribute photocopies of the published
> article to your colleagues on an individual basis, but
> not electronic versions. On my reading, there's a
> 12-month embargo on circulating electronic copies of the
> refereed version of the article in any way. Wouldn't
> this prohibit the "email eprint request" button?
> http://openaccess.eprints.org/index.php?/archives/274-guid.html
> <http://openaccess.eprints.org/index.php?/archives/274-guid.html>
>
>
>
> (1) The SAGE "author-re-use" document says "You can
> distribute photocopies." It does not say "You cannot
> distribute electronic versions." It simply does not say
> "You can distribute electronic versions."
>
>
>
> (2) There are many other things the SAGE "author-re-use"
> document does not say you can do with your own work,
> including that you can distribute corrected versions,
> laminated versions, or versions in Gothic script.
>
>
>
> (3) And in saying things that you can and cannot do with
> your own work, the SAGE "author-re-use" document is not
> restricting itself to the things a publisher can and
> cannot tell you that you can and cannot do with your own
> work. For example, publisher "permissions" regarding what
> you can and cannot do with your pre-submission preprint
> prior to acceptance of the refereed postprint are rather
> far-fetched (e.g., making corrections in it).
>
>
>
> (4) But the short answer to your query is this: No,
> there is nothing either defensible or enforceable that a
> publisher can do or say to prevent a researcher from
> personally distributing individual copies of his own
> research findings to individual researchers, for research
> purposes, in any form he wishes, analog or digital, at
> any time. That is what researchers have been doing for
> many decades, whether or not their right to do so was
> formally enshrined in a publisher's "author-re-use"
> document.
>
>
>
> SAGE is a ROMEO pale-green publisher:
> http://romeo.eprints.org/publishers/65.html
> <http://romeo.eprints.org/publishers/65.html>
>
> That means they endorse authors making their
> pre-refereeing preprints Open Access immediately (and
> they endorse making authors' refereed postprints Open
> Access after a one-year embargo). During the embargo,
> SAGE authors (like any authors) are of course free to
> send an individual copy (whether analog or digital) of
> their refereed postprint to any individual user who
> requests an individual copy for research purposes. Nor is
> SAGE or any publisher entitled to dictate to the author
> how they may lick the stamp or stroke the key that will
> mail or email the reprint or eprint to the requester.
>
>
>
> If I may make one suggestion to researchers who are
> puzzling over what they can and cannot do with their
> published research articles: Please use common sense
> rather than falling into (or for) formalistic fatuity.
>
>
>
> Stevan Harnad
>
Received on Sat Aug 01 2009 - 11:03:54 BST