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

The thrust of my comments was not directed at your model, Stevan, but at what broad interpretations of "fair use" as equating with "educational use" encourage faculty to believe. If they further believe that they retain all "fair use" privileges after transferring all rights to a publisher, and many of their colleagues join them in this belief and establish a "best practice" of posting postprints to their personal web sites or local IRs, under 504(c)(2) their "reasonable" belief that this is a correct practice under fair use will insure them against liability for infringement should a publisher decide to bring suit, thus discouraging legal challenges to the practice. The likely result, I allege, of such a scenario is undermining a useful subscription-based service like Project Muse, which in turn can lead to the demise of many humanities journals, which is not the outcome desired by these authors but will be the "unintended consequence" of their exercise of "fair use."

Your own model, restricted as I understand it to individual transactions between author and colleagues interested in the author's research, I do not perceive to be a direct threat to the survival of journals as it seems unlikely to lead to the displacement of subscriptions by libraries and is more an extension of the traditional practice of sending offprints or photocopies to a limited number of colleagues in direct contact with the author.

But I still wouldn't call it "fair use" because permission is explicitly invoked in this process.

Sandy Thatcher
Penn State Press


Sandy, I don't understand why you keep conflating (1) the
author's emailing of single eprints to requesters, for research
purposes (Fair Use) with (2) making the article OA immediately
without the publisher's blessing. The whole point of the ID/OA
mandate is to make embargoed articles Closed Access, but to
*deposit* them in the IR immediately just the same:

On Mon, 11 Jun 2007 Sandy Thatcher, President, Association of American
University Presses, wrote:


 Here is my nightmare scenario with respect to journals....
 Let's say... 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... 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."

That's not ID/OA: ID/OA is to deposit the article in Closed
Access and use the Fair Use Button to fulfill individual eprint
requests.

(I don't believe authors need their publishers' blessing to make
their own articles immediately OA, by the way, but we weren't
talking about my beliefs, or even about OA, but about the
Immediate-Deposit/Optional-Access mandate, Closed Access, and the
Fair Use Button, which is not OA.)

     http://openaccess.eprints.org/index.php?/archives/71-guid.html

Stevan Harnad