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

From: Charles Oppenheim <C.Oppenheim_at_LBORO.AC.UK>
Date: Sun, 27 May 2007 20:30:58 +0100

Sorry to be a party pooper for Andrew, but what he says
about the law is, strictly speaking, incorrect.

Firstly, fair dealing in UK law is not limited to one
copy; in principle, one can make multiple copies, just so
long as each one is for one's research or private study
(or for other permitted purposes, such as criticism or

His reference to Inter Library Loan forms is also
misleading, as that copy is made under a quite separate
exception to copyright, namely library privilege. It's a
common mistake to assume the two are synonymous, but they
are not; library privilege isa indeed confined to a
single copy, involves the paying of fees and signing of
forms, none of which apply to fair dealing.

I don't think any of this particularly affects the thrust
of Andrew's argument, and readers no doubt think I'm being
a seriously anal retentive pedant bringing all this up,
but it is worth stressing that fair dealing is more
liberal than library privilege, and the two should not be


On Sun, 27 May 2007 13:38:43 +0900
  "Andrew A. Adams" <A.A.Adams_at_READING.AC.UK> wrote:
> 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
> 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
> ***mail*Reading RG2 0BA, UK******** The University of
> ****Tel*+44-118-378-6997*********** Reading, United
> ****
Received on Sun May 27 2007 - 23:23:38 BST

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