[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: Publication, Access Provision, and Fair Use

If you're not interested in "formalism," Stevan, then why insist on calling this practice of a researcher sending a copy of a paper to a colleague "fair use"? That is a LEGAL term, pure and simple, and is codified in statutory law in the U.S.

My point is that you are simply wrong about the legality here; "fair use" does not remain as a residual right after you have signed a contract transferring all rights in an article to a publisher. Read that language, Stevan: it usually says "all rights," meaning that there is nothing left over, and what the author can do is strictly governed by the terms of the contract. But of course only the parties actually signing the agreement are bound by it; everyone else is entitled to claim fair use in gaining access to the article and making use of it.

In the print world, when you received offprints from a publisher, those physical copies became yours to do with as you wanted, just the way that Sec. 109 permits you to do anything with a physical copy of the book once you have bought it; you can give it away, burn it, sell it to someone else, donate it to a library, etc.

When photocopying came to take the place of offprints, the situation became murkier because photocopying theoretically would allow an author to distribute any number of copies; and then when the Internet came along, this problem only became exacerbated.

You are evidently claiming that nothing changed along this spectrum of author's sending copies to colleagues. I am claiming that everything changed. Just as no publisher of a book would agree that any author has a residual fair use to distribute copies of the book electronically or via photocopy to any number of colleagues after it is published, so too a journal publisher is not going to agree that an author of an article has this kind of right you are calling fair use (but may agree to give the author the right, via the contract, to do a certain amount of this kind of sharing, which we all recognize as reasonable). If you think the latter is ok but not the former, then how would you distinguish the two on grounds of the right you are claiming as fair use?

As for your assumption that "manuscripts merely posted online are listed under 'Unpublished Works'," then how do you account for the fact that many thousands of authors who "publish" their books through online services like iUniverse, XLibris, etc. would certainly consider their works to be published and would list them as such on their resumes? Probably the distinction that needs to be made in the future, for academics at least, is a list of "peer-reviewed works" versus a list of "works not peer reviewed." That is the more meaningful distinction in the age we live in today, not "published" versus "unpublished," as Rick's comment suggests.

Sandy Thatcher
Penn State Press

(1) In an academic's CV, under "Published Works," one lists books
and articles. Manuscripts merely posted online are listed under
"Unpublished Works."

(2) If the reprint of a published work is mailed or emailed to a
colleague, or posted online, that is not another published work,
nor a republished work: It is access provision, to a published
work.

(3) Authors sending individual reprints and eprints of their own
published work to individual requesters, for research use, is
Fair Use, uncontested, and incontestable.

Some comments:

On Thu, 31 May 2007 sgt3@psu.edu wrote:


SH: OA itself is a form of access-provision, not a form of
publication. Gold OA is a form of publication.

 This is a distinction without a practical difference, Stevan,
 and U.S. copyright law would not differentiate between the two;
 both Green OA and Gold OA would be technically defined as
 "publication" under the law.

 I misspoke: as my colleague Ricky Huard on the AAUP Copyright
 Committee reminds me:

 My guess is that he's making a distinction based on the
 definition of "publication" in the 1976 Copyright Act: "the
 distribution of copies or phonorecords of a work to the public

> by sale or other transfer of ownership, or by rental, lease, or

 lending. . . . A public performance or display of a work does
 not itself constitute publication." If "access" equals
 "display" (as I suspect he may be thinking), he has a point,
 albeit a rather casuistic one: He's not copying and
 distributing--just inviting 300 million of his closest friends
 to see the display.

Both posting on the Web and giving away reprints or eprints of
one's own published work are access-provision not publication.
Only giving away reprints/eprints (for research purposes) is Fair
Use.


 Most journal contracts I am familiar with specify the transfer
 of "all rights." Such a transfer means what it says, quite
 literally, and it is entirely unnecessary therefore to include
 any specific waiver of fair use rights. The very act of
 transferring all rights effectively accomplishes that, and
 nothing more needs to be added.

I retain the uncontested and incontestable right to give away
single reprints or eprints of my published work to individual
requesters for research purposes.


 What you surely have in mind, Stevan, is the previous practice
 in the print world of publishers providing offprints of
 articles to their authors on publication, obviously intending
 for authors to make use of those offprints by sharing them with
 colleagues. Once photocopying took over, some publishers ceased
 the practice of providing offprints as a needless extra expense
 and, at least tacitly, allowed the practice to continue of
 authors making (photo)copies of their articles for this same
 purpose.

For research purposes. That's Fair Use. Uncontested and
incontestable.


 Now Stevan just assumes that the same practice naturally
 continues into the purely digital age, and I won't deny that
 many, probably even all, publishers accept this kind of copying
 as legitimate and don't intend to try preventing it.

So what is it that we are arguing about? I keep saying I am not
interested in formalism here but in actual practice, uncontested
and incontestable.


 It is still not true, however, that the author retains any fair
 use right once an "all rights" transfer is effected. No such
 right exists, and only what the contract allows, or the
 publisher otherwise permits, makes the practice legitimate.
 That is the point Rick and I are trying to make, I believe.

I retain the right to give single reprints or eprints to
requesters for research purposes. That's the uncontested and
incontestable practice at issue here.

Stevan Harnad