Re: Fair-Use/Schmair-Use...

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

On Mon, 6 Aug 2007, Peter Hirtle wrote:

> I for one am in agreement 100% with Sandy Thatcher on this. We 
> already are suffering confusion because of the ill-advised 
> decision to use terms like "self-archiving" and "open archive," 
> both of which have nothing to do with archives or the permanent 
> retention of knowledge.
Both terms were perfectly fine for providing online access 
(permanently, of course).

But "open archive" then went on to denote OAI-compliant and 
interoperable, but not necessarily Open Access, so "Open Access" 
was needed as an extra descriptor. "Repository" was (and is) of 
course entirely superfluous ("archive" would have done just 
fine), but now "Institutional Repository" has consolidated its 
supererogatory niche, so OA IR is what we have to make do with.

> Now we have proposal to use
> the term "fair use" in a manner that has nothing to with either the American
> concept of "fair use or the British concept of fair dealing.
The "American concept of fair use or the British concept of fair 
dealing" comes from the paper era, and does not fit the online 
era, especially for research. So they have to be adapted and 
updated. Not the online era to the antique terminology, but the 
terminology to the online era.

The adaptation needs to be natural, commonsensical and 
transparent, not tortured and procrustean, attempting to 
resurrect obsolete, inapplicable and incoherent usages of "fair 
use" by insisting on fidelity to defunct, papyrocentric 
intuitions, consigning the commonsense ones to "schmair use." 
That would be pedantry, not progress.

> Harnad's proposal would just further obfuscate what is meant by 
> both. Further, using the term suggests a specific legal basis 
> for the action, when in reality the actions may be authorized 
> by license. Schmair use it is... Peter B. Hirtle CUL 
> Intellectual Property Officer Technology Strategist Cornell 
> University
It is *fair use* -- legally as well as commonsensically -- to 
email a copy of your article to an eprint requester. It is fair 
use -- legally as well as commonsensically -- for the requester 
to read and use that emailed copy. End of story. The rest would 
just be self-imposed confusion and obfuscation. One should update 
one's understanding of "fair use" rather than trying to consign 
these perfectly natural, contemporary and ubiquitous instances to 
"schmair use."

(By the way, I'd started calling it the "Fair Use" Button instead 
of the "Eprint Request" or "Request Copy" Button, inspired by 
someone else (I've forgotten who: felicitous first-coiner please 
identify thyself!) to call it that, because that made the 
Button's purpose and use far more transparent and comprehensible, 
intuitively, and people at last understood what the Button was 
really about, and for. Does anyone really imagine that this is 
the time to call it the "Schmair Use" Button, out of fealty to 
the Dark-Ages origins of the term "Fair Use"?)

     "How the Immediate-Deposit/Optional-Access Mandate + the 'Fair Use'
     Button Work"
     http://openaccess.eprints.org/index.php?/archives/274-guid.html

     "Get the Institutional Repository Managers Out of the Decision Loop"
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/6482.html
     http://openaccess.eprints.org/index.php?/archives/260-guid.html

Stevan Harnad