Re: OA Mandates, Embargoes, and the "Fair Use" Button

From: Stevan Harnad <>
Date: Sat, 26 May 2007 12:42:03 +0100

On Sat, 26 May 2007, Ahmed Hindawi wrote:

> Does any of this depend on the researcher being an author of the article
> in question? If it does not, then fair use allows any researcher to make
> an individual (electronic) copy of any article to provide someone else
> with it for their private research, right?

I leave this to the rights experts to answer: I ask only why the
question is being raised here? The issue is authors self-archiving their
own published papers, free for all, on the web. The Fair Use Button is a
back-up, for those self-archived articles that have been deposited as
Closed Access (38%) rather than Open Access (62%) because their publishers
want an access embargo. The Button allows authors to provide almost-OA,
almost-instantly, on an individual Fair-Use basis, to tide over the
embargo period (which, I predict, will soon fade away completely once
we have 100% self-archiving mandated and practised).

Third-party Fair Use is not relevant to this question. Users discover
the metadata for an article from the author's having deposited it in his
IR, which also has the Fair Use Button. One-to-one peer-to-peer
distribution of the eprints of others is a negligibly tiny portion of
the likely traffic for eprints.

> If this is so, then what is the (legal) situation when the researcher
> making the (electronic) copy gained access to the original article copy
> under a license which prevents copying and redistribution of even an
> individual copy of an article to anyone else outside the licensed
> institution?

Again, 3rd-party access and distribution is not pertinent for OA. If
an author has made a Closed Access Deposit of his own article, in his
own IR, he can decide, under Fair Use, whether/when to email individual
copies to others. The right of others to further distribute that copy is
not a matter of any interest to OA. The canonical primary free source,
webwide, is the author.

There may be legalistic fun to be had on the formal minutiae of the
3rd-party question, but nothing concerning OA or self-archiving hinges
on it, one way or the other. On the web, the canonical source (the
author) is enough...

Stevan Harnad

> Andrew A. Adams wrote:
> >> On Thu, 24 May 2007, Bebbington Laurence wrote:
> >>> This would, I think, prevent an author=20
> >>> who has assigned copyright from making or authorising the copying=20
> >>> and sending of an item to someone IF the intended use is for=20
> >>> commercial purposes (e.g. an author, who is not the copyright=20
> >>> owner, could not send the published version to someone working in=20
> >>> a pharmaceutical company's research laboratory). However, arcane=20
> >>> this may seem, it is (in my view) the legal position.
> >
> > Stevan Harnad replied:
> >> It is indeed arcane and seems to have nothing to do with the topic at
> >> hand (and the rationale for Open Access), which is individual research
> >> use for research purposes.
> >
> > Bebbington Lawrence is indeed misinterpreting the phrase "commercial purposes" here. The "commercial purposes" referred to in the copyright act are the commercial exploitation of the copyright work, not the ideas embodied in it. So, a researcher working for a commercial company rather than a non-profit university has exactly the same rights to private research copying as does an academic at a university. The "commercial" element means that you cannot make individual copies of an article and send them to others. You may, however, make a single copy of an article in order to provide someone else with it for their private research - i.e. reading the article.
> >
> > What the receiver then does with the information they gain from the article is entirely outside copyright law, so long as they do not violate the rights to produce derivative works nor sell copies of the article to others.
> >
> > (Side note: this is also a common misunderstanding of the "non-commercial" distribution licences provided by Creative Commons. For example, the lecture notes and podcasts that I release under a Creative Commons BY-NC-SA license may be used by commercial training providers. They may not charge a fee for access to materials derived from my notes/podcasts, but they may charge a fee for training sessions in which they use my notes as AV aids in teaching. It's the commercial distribution of the copyright material which is not licensed, not the use in other commercial transactions that is prohibited.)
> >
> >
> > --
> > *E-mail********* Dr Andrew A Adams
> > **snail*27 Westerham Walk********** School of Systems Engineering
> > ***mail*Reading RG2 0BA, UK******** The University of Reading
> > ****Tel*+44-118-378-6997*********** Reading, United Kingdom
> > ****
> >
Received on Sat May 26 2007 - 13:03:17 BST

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