RE: OA Mandates, Embargoes, and the "Fair Use" Button

["Bebbington Laurence" <Laurence.Bebbington@nottingham.ac.uk>]

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. In my own view the actual position is more 
likely to be as follows:

  - 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. This point must always be 
kept in mind. It follows on important changes to UK copyright law 
in 2003.

  - where physical copies of reprints are concerned, then an 
author who receives physical reprints can give them to anyone 
that he/she wants for any purpose.

  - 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. 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.

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.

Laurence

Laurence W. Bebbington
Team Leader (Law)/IS Copyright Officer
Information services
The University of Nottingham
Nottingham
NG7 2RD

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Stevan Harnad
Sent: 24 May 2007 01:44
To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM@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@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