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

From: Stevan Harnad <>
Date: Sat, 26 May 2007 20:13:39 +0100

It is always perplexing to me how certain buzzwords invariably and almost
reflexively make people forget not only that this is an OA Forum, but
also what OA itself really is, and is about, and for; and most important,
what comes, invariantly, with the OA territory:

OA means immediate, permanent, free online access to the full text of a journal
article, webwide, for anyone, anywhere, 24 hours a day.

Now, in that context, what on earth is all this discussion about
"commercial exploitation"? Read on:

On Sat, 26 May 2007, Fytton Rowland wrote:

> 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.

Indeed. But what on earth has this to do with OA?

All OA means is that if you can't afford access to the original publication -- or
any authorised republication -- you can always have free online access to the OA

> 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.

Reasonable indeed.

Meanwhile, those not lucky enough to be on the pharmaceutical company's distribution
list can always have free online access to the OA version.

> 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 Access anyway (Gold or
> Green) this becomes irrelevant, since anyone can have a
> free copy anyway.

This time Fytton seems to have answered his own question: Yes a company has to pay
to put a hard copy in its library, but those who don't frequent the company's
library can always have free online access to the OA version.

Les Carr, was, I believe, referring to the (uncontested) right to use the
*content* of the article (in further research and applications). That is what
research publication (whether OA or TA) is about, and for.

Now, insofar as "almost-OA" and the "Fair Use Button" is concerned --
i.e., when, because of a publisher embargo, an author deposits an article
in his IR in Closed Access rather than Open Access, and instead relies
on the IR's Fair Use Button to email individual eprints to individual
eprint requesters who are brought by search engines to the Closed
Access deposit: This is just an interim almost-immediate surrogate for
the immediate direct access OA would have provided, to tide over usage
needs during the embargo (till embargoes all die their natural, inevitable
and eminently well-deserved deaths!)

But that too has nothing to do with the commercial uses mentioned above, for
exactly the same reasons.

Stevan Harnad

> 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
> >>>for
> >>> commercial purposes (e.g. an author, who is not the
> >>>copyright
> >>> 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 - 22:55:03 BST

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