Fair-Use/Schmair-Use...

[Stevan Harnad <harnad@ecs.soton.ac.uk>]

On Wed, 1 Aug 2007, Sandy Thatcher wrote:

> Sorry, Stevan, but if the author has the option to deny sending 
> the article (on your second alternative), then in effect the 
> author is either not giving permission to the requester to use 
> it for the stated purpose or is making it more difficult for 
> the requester to gain access to the article, and neither of 
> these is properly considered a matter of "fair use." Fair use 
> occurs without any process of permissioning involved, and it is 
> not a matter of access anyway but of use; the requester can 
> still make "fair use" of the content of the article when 
> accessed in another manner.
Quite the opposite, Dear Sandy! All it takes is common sense (and 
abstention from legalistic mumbo-jumbo that has no counterpart in 
the real world!):

I do some research. I discover something. I write it up. I submit 
it to a journal for peer review, and, if accepted, publication. I 
deposit the final accepted draft in my Institutional Repository. 
If my publisher endorses immediate Open Access self-archiving, I 
make the deposit Open Access. If my publisher prefers an embargo 
(and I feel like complying!), I make the deposit Closed Access. A 
would-be user uses the Button to request a copy of the deposit 
for research purposes. If I choose to do so, I click to authorise 
the emailing of a copy to that user for research purposes.

End of story. Perfectly simple. Exactly the same as what has been 
going on for a half century, with requests for reprints by mail, 
but it has now been adapted and optimised for the online era.

I can think of no reason I would refuse to send an eprint to a 
requester for research purposes, but, let's say, if I discover 
somehow that the requester wants to use it to promote racism or 
terrorism, I might refuse. Absolutely nothing hangs on this. It's 
completely irrelevant to the point of substance under discussion.

The "fair use" is the requester's, if I send him the eprint, and 
mine, if I decide to send him the eprint. That's transparent, and 
fits intuitively with what we mean by "fair use." But if there is 
some convoluted technical reason why you would prefer to call 
that something other than "fair use," call it "schmair use" and 
let's leave it at that.

Best wishes,

Stevan Harnad