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

From: Andrew A. Adams <A.A.Adams_at_READING.AC.UK>
Date: Sun, 27 May 2007 13:38:43 +0900

As Stevan said, this is beginning to drift into a seminar on copyright law,
and away from the question of OA, but I will add one more explanation to the
questions regarding fair use and "private research" because I believe any FUD
going around about these questions potentially damages the ID/OA approach
which is the best chance we currently have of achieving something close to
100% OA.

Old style Fair Use allowed anyone with an original distribution to make a
single copy for themselves or someone else for the purposes of private
research. The recipient of this copy was not allowed to make further 2nd (and
higher) generational copies for others. They had to find a holder of an
original to take a copy from. This is the basis, for example, of the
Inter-Library Loan system. If you look carefully on the license that comes
with an ILL photocopy, you'll see that you are not entitled to make any
further copies of it.

Now, in the modern digital era, the distinction between an original and a
copy has disappeared as an intrinsic element of the physical piece (by the
way, an offprint provided by the publisher for sending to others as a
physical piece is an original - photocopies of it are copies). However, in
the legal terms, the holder of a digital copy of an article which they have
either by virtue of having paid for it, or by virtue of having had it
provided as an official "personal copy", has the fair use right to send
copies to others for their private use. However, the others may not
distribute it further. Of course, there is no technological restriction that
can prevent this - but then only the generational reduction in quality
prevents multi-generational photocopies spreading and certainly a
second-generation photocopy is almost always usable for reading, though not
always copying further.

So, to bring this back to OA, the original author has a "digital original"
and therefore has the right to provide a single copy for private research
purposes to anyone else. Anyone who has purchased a "digital original" also
has this right technically in law, but new social norms may well frown upon
this. In terms of social norms, the provision of a "digital copy" from the
author is certainly accepted and, as noted above, completely legal. Thus the
Fair Use Button in eprints is completely within copyright law.

Whether this is a right one can give away by contract is a subtle question,
well beyond the scope of this list. But, as Stevan has said, academic authors
signing such a contract would be crazy.

*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 Sun May 27 2007 - 11:20:34 BST

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