Re: Fair use

[Ann Okerson <ann.okerson@yale.edu>]

[Of possible interest -- from a one-on-one exchange with Sandy 
Thatcher.  Ann Okerson]

Sandy -- as as I wrote in my liblicense-l posting, I think you 
may be conflating several different things in your messages about 
"fair use."

1.  The transfer of copyright ownership of an article by an 
author to someone else loses for the author those ownership 
rights (in the US, these are defined by copyright law at the very 
beginning of the Act -- "distribution" is one of them).  That 
owner still has the other rights granted under copyright law, BUT 
no longer those of owner -- rather, of a user, like the rest of 
us.

For those in the US, these user rights certainly include fair 
use; fair dealing in the UK (other countries have their own 
limitations and exceptions); AND whatever other rights the 
copyright laws of nations permit to their people - as users of 
copyrighted information.

2.  The difficulty arises over (see my earlier posting) the 
definition of fair use.  Sure, the US author (no longer copyright 
owner in our scenario)  has fair use rights to the article s/he's 
transferred over to the publisher or whomever; so do I as a user; 
that's not the question.  I've understood the question you pose 
to be:  does fair use give the non-owner the right to 
redistribute the article?  And the law says, no, the distribution 
right right was foregone in the transfer.

But this doesn't altogether help us, for in real life, what we 
are discussing is this:  what is fair use in an *electronic* 
environment?  Does it include the right to post or to send an 
entire article?  When and under what conditions? In the US, we 
have the four use factors to guide us about what we can or can't 
do -- and they help but don't give us any "bright line" rules! 
AAA may say that one can ALWAYS do this as s/he pleases (and 
would be incorrect); BBB (I) might say "IT DEPENDS" on an 
analysis of fair use or whatever other factors apply; you (Sandy) 
might say, NEVER for the author, but IT DEPENDS for all others.

3.  Our author (now a user!) has two more considerations, apart 
from fair use:

A.  The author-publisher transfer:  does it permit for the author 
certain actions, such as posting on preprint servers or personal 
home pages (so everyone can look and download); forwarding the 
article as a surrogate for offprints, etc? For what versions of 
the work?  How should one identify this work and credit it?  A 
number of agreements do permit some or all of these types of 
activities and are clear about what/when/how: (see for example 
the very fine agreement of the American Physical Society), and if 
so, the "can I?" answer to the author is clear.

B.  Also to be taken into account are the "norms" of a given 
discipline or group.  Is the proposed action something that is 
normally now done within a discipline or among institutions or as 
normal practice?  How?  If so, then the author might rest 
somewhat easier, though "norms" are not the same as legal ground.

4.  If none of the above is helpful, the author who wants to 
forward his articles could (1) get in touch with the publisher 
and conduct a useful dialog; and/or (2) decide to assume the 
"risk" (to the extent that there is one, i.e., that the publisher 
could litigate against the author, which doesn't seem too 
likely).

I believe that questions of this sort provide a great opportunity 
for the two parties to engage in a mutually educational 
conversation.  (1) would certainly be the recommended course and 
appropriate course of action!!

BTW, nothing stops said author from forwarding citations or 
links, so far as I know.

Ann Okerson/Yale Library


On Wed, 6 Jun 2007, Sandy Thatcher wrote:

> My contention is not that the author has NO rights, but only 
> the rights agreed upon in the contract. If you think it's 
> ridiculous that the author has no residual fair use rights, 
> then think how ridiculous it is that authors have wildly 
> differing notions of what is fair use-as do judges and lawyers, 
> by the way-so that contracts would be vitiated if authors had 
> freedom to do anything they felt to be fair use after turning 
> over all rights to a publisher.... [SNIP]