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

[Sandy Thatcher <sgt3@psu.edu>]

For a scientist, Stevan, you sometimes make some astonishingly 
broad generalizations. E.g., in response to Rick Anderson you 
wrote:

At 4:18 PM -0400 8/15/07, Stevan Harnad wrote:
> (b) Every single one of those articles (without exception, and 
> in stark contrast to the rest of the digital domain) is written, 
> and always has been written, purely for the sake of research 
> usage and impact, not for royalty income.
> (d) All these authors want only three things: (1) to have their 
> papers peer-reviewed by an established peer-review authority 
> (with a track-record for quality and rigor) and (2) to have 
> those peer-reviewed papers (certified as such, by the name of 
> the journal that implemented the peer review) accessible online 
> to every potential user on the planet, with absolutely nothing 
> blocking their (online) access -- least of all whether the 
> would-be user's institution happens to be able to afford to pay 
> for subscription access to the journal in which it happened to 
> be published.
Well, I can tell you of some authors whose articles we have 
published in our scholarly journals who have profited handsomely 
(in the thousands of dollars) from frequent reproduction of their 
articles in commercial anthologies and university course packs. 
(In one case recently we received a payment of $14,000 from CCC 
for a large amount of copying done from an edited volume in a 
number of universities overseas.) They have all cashed the checks 
we sent them, so presumably they did "want" the money even though 
they weren't motivated originally to write by the pursuit of 
profit.

Below you say I'm confused about fair use in your "Fair Use 
Button" because I really don't like the implication it might have 
for books. Well, as I've just said in response to Peter's 
posting, I have no problem with an author supplying a colleague 
with a single copy of an article for research and teaching 
purposes, so we have no disagreement there in principle. (See my 
questions about responding to requests resulting in multiple-copy 
distributions, however.) But you are simply wrong that book 
authors are not interested in giving away their book content for 
free. In university press publishing many authors are paid no 
royalties, and some are even asked to supply subsidies, and these 
authors would have no compunction about giving away their books 
for free. They could readily fall under your three points about 
what scholarly authors really "want." Even some high-profile 
authors like Larry Lessig and Yochai Benkler have persuaded their 
publishers to allow them to post their books online for free. So, 
as a generalization, that is much too broad.

So, too, is your flat assertion that "books are not peer 
reviewed." I guess you're not aware that to be a member of the 
Association of American University Presses a university-based 
publisher MUST have a process of peer review in place, and every 
book published by an AAUP-member press is peer reviewed. That's 
about 8,000 per year!  Add to that the many thousands more 
published by academic commercial publishers, which may not be 
required to conduct peer review but generally do. So, peer review 
is NOT a differentiating factor between scholarly journals 
articles and scholarly books.

Finally, your reply to Rick that copyright has been applied 95% 
to protecting against against illegal making of multiple copies 
is a number I think you have just pulled out of the air. There 
are many, many cases of alleged infringement that do NOT involve 
simple duplication or redistribution (the "reproduction right" is 
only one of six listed in Section 106), such as all those 
involving charges of plagiarism, creation of derivative works, 
parodies, public performances and display, etc. Authors do care 
about these other uses, I daresay, and there are no other laws 
than copyright to protect them against such misuses. So, however 
much you'd like to see it go away, copyright retains important 
functions in the digital age. Even some authors of scholarly 
journal articles might be exercised by, say, the kind of parody 
that Alan Sokal famously performed in mimicking postmodernist 
writing, and in some situations copyright law might protect a 
scientist like Sokal who performed a parody of a piece of writing 
by another scholar!

Sandy Thatcher
Penn State University Press