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Re: Fair use

I think a more precise way of stating what I originally meant to say is that, while the author who assigns "all rights" to a publisher may still have a defense of "fair use" to make against a claim of copyright infringement by the (new) copyright owner, that defense may be negated by a court that holds to the view, as several courts of appeal have, that state contract law trumps federal copyright law. So, though theoretically available as a defense, it may be legally viewed by courts as unusable because of the court's interpretation of the preemption doctrine. As Marc Lindsey's analysis shows, however, there are enough conflicting opinions about how the preemption doctrine works in regard to fair use as to make all of us unsure of any subsequent judicial outcome in this arena. Not a happy state of affairs, to be sure.

I agree with you as to the practicalities, so that there may in fact never be any need to test out this conflict in court. My guess is that if it ever comes to a test, it will come in the arena of book publishing rather than journal publishing, which was the focus of my recent answer to Stevan's posting.

Why am I concerned about this? Let me spell it out with respect, first, to journals and, then, to books.

Here is my nightmare scenario with respect to journals. Let me use the example of the recent contract addenda that have been promoted by MIT, SPARC, the CIC, Science Commons, etc. Let's say that an author of an article approaches a publisher with a request to attach the addendum in toto the publisher's contract. The publisher objects to the clause that would allow for posting of the postprint article (in final form) on the author's institutional repository either immediately or after six months, while accepting some of the other addenda (such as allowing unrestricted use of the article within the author's own institution). The author says, ok, I'll go ahead and sign this contract but then post the article in final form on the IR anyway because I can do so under a claim that this practice is "fair use." Is the publisher going to sue a single author over this stance? Unlikely. But the effect of such a practice, multiplied many times over (and therefore gaining stature as an institutional "best practice" according to your scenario), would be to spell the doom, I claim, of Project Muse ultimately (unless it were somehow to transform itself into some other kind of service not relying on institutional subscriptions). If Project Muse fails, so too does our journals program at Penn State. And if that happens, the Penn State administration is faced with a stark choice: either double our current annual operating subsidy, or put the press out of business. If it chooses the latter, then the scholarly community has lost not only 11 journals but 50 new scholarly books annually in the fields where we concentrate in the humanities and social sciences. This is one example of the "law of unintended consequences" as it operates in the academic world.

Consider now what happens on the book side. An author signs the normal "all rights" book contract with our press, but considers that it is "fair use" to post the final book file on the same IR where the article is posted. Why, the author naturally reasons, should there be a difference between the two? After all, in each case, it is the "entire work" that is being posted, the intent is for "educational use," and the work is mainly factual rather than expressive in nature, and the impact on the market, while somewhat different from the case of a journal article, may actually be to increase sales of the print edition (here the author would point to the "success" of books by Larry Lessig and Yochai Benkler issued online as well as in print). Who knows, a judge might well buy this argument. (Five of thirteen judges felt that the copying done by Michigan Document Services of Princeton U.P. and other academic publishers' titles qualified as "fair use.") But this decision by the author would effectively undercut the publisher's own control of whatever business model the publisher was using. In our case, our Office of Digital Scholarly Publishing, like the National Academies Press, is publishing monographs in a new Romance Studies series online, but like NAS under controlled technological conditions that motivate users to buy a POD version. The author's own posting on an IR without those controls would effectively change the entire business model, and my guess is that it would not work for most books because most authors are not Lessig or Benkler. This would be another unintended consequence of an author's decision to rely on "fair use" to circumvent a publishing business model. Think of what has happened in the music business with P2P file-sharing and you'll understand why this makes me very nervous, especially because I think the alternative business models for academic monograph publishing are rather more limited than they are for music sales.

Is Penn State's administration going to allow us to sue such an author? I think not. It's the University that has to sue, not the Press, which has no legal standing apart from the University. Anyway, as you well know, any author who can convince a judge that his or her belief that the act of posting as fair use was "reasonable" is going to be freed from any financial penalties, which means that the suing party would have to be ready to absorb all expenses and take such action on the basis of principle entirely.

The upshot of all this well-intentioned posting of journal articles and books "for educational purposes" is, in the end, to force a change to Gold OA as a business model for university press publishing. Whether that is a good thing or a bad thing is an open question. Our AAUP Statement on Open Access declares that the shift might have some wonderful benefits, but it also warns of wrenching changes and strong possibilities of failure in this enterprise. My bottom line is that if we all want to go in this direction, fine, but I think it should be done with our eyes wide open and not as a result of "unintended consequences" resulting from decisions made on narrow self-interested grounds In a word, to repeat my favorite mantra, we all need to think systematically!

Sandy Thatcher
Penn State Press


[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]