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

Peter,

Very interesting and I think we are making progress in understanding one another, but we are still not quite there: If one took what you appear to be saying below literally, then the millions (maybe billions) of photocopies of their own articles that authors have been mailing to reprint-requesters for the past half-century could not have been mailed, because those authors had signed away their right to do so.

I don't believe anything they ever signed took away that right; and if on someone's theoretical construal they *are* construable as having done so, then there is no way that that the exercise of that right could ever be prevented, or any attempt to prevent it be justified.

That is why I take this all to be an exercise in hypothetical hermeneutics, not real-world research and researcher practice. In the real world, researchers never asked themselves or anyone else whether they had the right to send photocopies of their very own articles to would-be users who asked for them; they just sent them: first photocopies by mail, and now eprints by email.

It is conceivable that if, over 5 decades ago, an author, having received a reprint request, had formally consulted an IP specialist instead of just xeroxing a copy and licking the stamp, to ask: "May I do this?" he might have received the advice: "No, you may not, unless you renegotiate your copyright agreement with your publisher."

I submit that this would have been appallingly bad advice then, and it continues to be bad advice now. Researchers are quite right to just go ahead and do the sensible, natural thing with their own work (short of republishing it), without seeking "expert" advice.

(I could go further, and add that the physicists and computer scientists [and countless others in other fields] who have [again without seeking any specialist's advice] been posting their preprints and postprints on their websites and Arxiv [and even earlier on their FTP sites] without a single legal challenge for nearly 2 decades now were likewise doing the sensible thing. But since the non-posters seem in part to be inhibited today because of what they think is expert advice, I will leave that moot for now: I am not talking about OA posting, just about fulfilling an individual request for an individual copy.)

Charles Oppenheim suggested that the 5-decade-long uncontested (and incontestable) practice of mailing individual reprints (and now emailing individual eprints) is not so much the exercise of so-called "fair-use/dealing rights" but rather the exercise of a natural exemption from copyright transfer agreements. (I'd say fair-use/schmair-use -- practically speaking it all amounts to exactly the same thing!)

As to the two examples you cite below, Peter:

[1] one faculty member here [got] charged $400 to reproduce a figure from one of his articles, and [2] a graduate student [got] charged $1500 to reproduce one of his articles in his dissertation. Stupid? Yes. Legal? Also yes...
I would reply that [1] is completely irrelevant to what we are discussing here, because we are discussing the author giving an individual copy to an individual requester here, not republication, all or in part.

For [2] there might also be a sleazy stretch by which a dissertation could be construed as a "publication," again collapsing it into case [1] above. I think this sort of nonsense has been exorcised from most copyright transfer agreements today, but again [2] is completely irrelevant to the case under discussion here, which is not about republication, but but about the author giving an individual copy to an individual requester.

(I hope you won't now tell me, Peter, that even to make a photo-copy, or to run off a hard copy, of my very own paper, I need to have specifically retained that right from my publisher. We have to draw some rational lines in the sand, otherwise we will find ourselves having to include a formal contract with our theater tickets to the effect that whilst sitting in our purchased seats, we are entitled to breathe in the accompanying air!)

If I were that graduate student, by the way, there is no way on earth I would have paid my article-publisher a penny for submitting it as part of my dissertation. If he wants to go after anyone, let the publisher try to go after whoever tried to *publish* the dissertation. I, as student, merely *submit* it, my own research findings, as partial fulfillment of my degree requirements. (If that's not "fair use," I don't know what is!)

Chrs, Stevan

On Tue, 21 Aug 2007, Peter Hirtle wrote:

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