RE: Fair-Use/Schmair-Use...

["Sally Morris \(Morris Associates\)" <sally@morris-assocs.demon.co.uk>]

There seems to be a lot of misunderstanding about what signing 
over copyright to a publisher does and does not imply

It all depends on the agreement.  Unless the author signs over 
'all rights' (which ALPSP surveys show is increasingly unusual) 
it would be perfectly possible - whether the author retained 
copyright or not - for the author to retain rights to 
self-archive (with or without limitations to avoid damaging the 
publisher's sales) and, indeed, to do other things such as re-use 
within his or her academic environment, and of course in his or 
her own future works.  It is absolutely normal for the publisher 
to provide paper offprints for the author to distribute as he or 
she chooses, and a number of ways to mirror this in the 
electronic environment have been tried;  there is usually some 
limit on the number of copies, again to avoid damaging sales.

Sally Morris
Email:  sally@morris-assocs.demon.co.uk

   _____

From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Peter Hirtle
Sent: 21 August 2007 19:00
To: liblicense-l@lists.yale.edu
Subject: Re: Fair-Use/Schmair-Use...

Stevan, the problem is becoming clearer. You feel that an author 
still has some rights in an article even after he or she has 
signed away all rights to that article. Specifically, you believe 
the author retains the ability to give away copies of the 
article, even in a systematic fashion, upon demand. I personally 
agree with you that authors should be able to do this. But if 
they want to do it, then they need to stop turning over all of 
their copyrights to publishers, and instead explicitly retain 
these rights themselves.

If they do sign a copyright transfer agreement that transfers all 
rights to the publisher, then the authors have no more legal 
right to make one of the articles that they authored available 
through your system then they would have to provide one of my 
articles. In both cases, all of the copyright rights, including 
the exclusive right to reproduce and distribute a work, belongs 
to someone else. The bottom line: you can't sign a legal contract 
with binding terms that transfers all of your rights and then 
claim that you can do something else because it is 'traditional' 
or because it is what you really meant.

If you want to be able to do the things you want to do, use the 
Scholars Commons Addendum Engine to generate a contract amendment 
that preserves those rights for you. And when you have done that, 
you are not using 'fair use' to deliver those copies to users - 
but are instead exploiting a right that you have retained. You 
wrote: "Anyone who imagines that an author can (or should) be 
prevented from photo-copying his *own* article for whatever use 
he sees fit is living on another planet." Well, I haven't seen an 
author get sued for copying his or her own article yet, but we 
have had one faculty member here get charged $400 to reproduce a 
figure from one of his articles, and a graduate student be 
charged $1500 to reproduce one of his articles in his 
dissertation. Stupid? Yes. Legal? Also yes - because in both 
cases, the authors signed a legally binding document that 
transferred all of their rights to the publisher.

Peter B. Hirtle pbh6@cornell.edu