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

From: Fytton Rowland <J.F.Rowland_at_LBORO.AC.UK>
Date: Sat, 26 May 2007 17:58:58 +0100

With respect, Leslie, I think you've missed the point.
There are actually two sorts of 'commercial exploitation'.

One would be (for example) if a paper published in a
journal (OA or TA) gets republished in some kind of
collection or anthology which is offered for sale. One
would reasonably expect the permission of the copyright
owner to be required. Similarly, pharmaceutical companies
sometimes distribute large numbers of copies of published
papers at their expense to (for example) physicians. They
expect to pay the publishers to do this. Again, I think
it reasonable that the copyright owner's permission would
be required, regardless of whether (s)he decided to ask
for any money.

The other would be if a commercial company simply wanted a
copy of a paper to put into its research library. It can
be argued that there is no 'fair use' in such situations -
as the use is not for 'personal study or research' but for
corporate research - and the company should pay. However,
if the paper was available on Open Acess anyway (Gold or
Green) this becomes irrelavant, since anyone can have a
free copy anyway.

Fytton Rowland, Loughborough University.

On Fri, 25 May 2007 14:12:36 +0100 pharmaceutical company
  Leslie Carr <lac_at_ECS.SOTON.AC.UK> wrote:
> On 25 May 2007, at 12:39, Stevan Harnad wrote:
>> On Thu, 24 May 2007, Bebbington Laurence wrote:
>>> This would, I think, prevent an author
>>> who has assigned copyright from making or authorising
>>>the copying
>>> and sending of an item to someone IF the intended use is
>>> commercial purposes (e.g. an author, who is not the
>>> owner, could not send the published version to someone
>>>working in
>>> a pharmaceutical company's research laboratory).
>>>However, arcane
>>> this may seem, it is (in my view) the legal position.
>> 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.
> The article as an expression of a particular scholarly
>work, not the
> scholarship itself.
> The copyright is the right to use (copy) that
>expression. It is not a
> right to use the scholarship.
> So commercial exploitation of the scholarship is
>irrelevant to the
> terms of the copyright and to "fair use".
> ---
> Les
Received on Sat May 26 2007 - 19:48:46 BST

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