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

From: Stevan Harnad <>
Date: Wed, 30 May 2007 04:17:27 +0100 (BST)

On Tue, 29 May 2007, Bebbington Laurence wrote:

> Where authors own the copyright or are using a version other than
> the publisher's final one then they can authorise what they want
> through any button and whatever the button is called.


Stevan Harnad

> I don't believe I have misrepresented "commercial purposes" as
> Andrew Adams suggested. To keep things reasonably short. Firstly,
> the notion of commercial competition with or substitution for the
> use of a copyright work is dealt with by the application of the
> fairness test in "fair dealing" in UK law (we do not have "fair
> use") and not through the "commercial purposes" amendment in 2003
> to the 1988 Act. This has been the approach in UK law since at
> least 1911. Secondly, I did not suggest that academics enjoy any
> more or less privileges than others. They don't. The brief
> scenario I put concerned someone in a research lab in a
> commercial firm being supplied with a copy of an item where the
> copyright in the item has been transferred to the publisher
> (Bernard's particular concern in the original posting was to
> "after the author has given up his copyrights to the editor.").
> What people do in permitting use of their own copyright material,
> and how they do it, is their business. Where the use is
> commercial and is of a publisher's item then its supply, by any
> means, is subject to the framework of the law as established in
> 2003. Thirdly, although there is as yet no case law it is quite
> clear that in UK law the issue of "commercial purposes" relates
> to the use to which the item will be put (whether for research or
> private study irrespective of the context) and if that use is
> "commercial" then within the UK only the copyright owner can
> authorise copying, unless the institution is licensed by an
> organisation such as the Copyright Licensing Agency under a
> licence that allows commercial use. I do not dispute that there
> is ambiguity and difficulty in interpreting "commercial
> purposes." UK universities are licensed (i.e. we pay for it) for
> the commercial copying that academics are currently doing on
> campus.
> That is the position.
> The whole issue of what constitutes commercial/non-commercial use
> and how this should be managed is something which has vexed UK
> academic libraries for the last 4 years.
> Where authors own the copyright or are using a version other than
> the publisher's final one then they can authorise what they want
> through any button and whatever the button is called.
> Laurence Bebbington
> -----Original Message-----
> [] On Behalf Of Stevan Harnad
> Sent: 24 May 2007 01:44
> Subject: OA Mandates, Embargoes, and the "Fair Use" Button
> [Exchange posted with permission from Profs. Rentier and Oppenheim]
> On 21-May-07, Bernard Rentier, Rector, U Liege, wrote:
> >> Dear Stevan,
> >>
> >> Can you give me some references on the authors' rights to use
> >> the "Request eprint" button during the Editor's imposed
> >> embargo period in the green OA model ? Is it legal?
> >> Particularly after the author has given up his copyrights to
> >> the editor. Thanks
> >>
> >> Bernard
> Dear Bernard,
> Authors are entitled to distribute individual copies to
> reprint/eprint requesters on an individual basis. This is called
> "Fair Use." It is exactly the same thing that authors have been
> doing for 50 years, in responding to individual mailed reprints
> requests, except that these are email eprint requests.
> You may consult with copyright lawyers if you wish. Fair use is
> not a right that a copyright transfer agreement can take away
> from anyone, especially the author!
> The reply of my colleague Prof. Charles Oppenheim, an expert in
> these matters. follows below.
> Best wishes,
> Stevan Harnad
> On Tue, 22 May 2007, wrote:
> > "Fair use" in the USA, "fair dealing" in the UK ("private copying" in
> > continental Europe) are very similar but not identical concepts. In a
> > nutshell, they give a person the
> > right* to make a copy of a copyright item for their research or
> > private study (and also, in the USA only, for teaching purposes). It
> > also allows a person to request another person to make such a copy for
> > him/her. Thus I could email Bernard to ask him for a copy of an
> > article he has written. Bernard is entitled to make that copy and
> > send it to me if I want it for the purposes of research or private
> > study. It makes no difference if Bernard has assigned copyright in
> > the item to a journal publisher or not.
> >
> > Stevan is correct that this right* was the basis of delivering
> > p/copies and reprints to requesters in years gone by; the only
> > difference these days is that it is done electronically.
> >
> > Charles
> >
> > * Strictly speaking, a lawyer would emphasise that fair use/fair
> > dealing/private copying is not a "right", but "an exception to
> > copyright", but the distinction is meaningless in practice.
> >
> > Professor Charles Oppenheim
> > Head
> > Department of Information Science
> > Loughborough University
> > Leics LE1 3TU
> It is hence important to clear up any lingering misunderstandings
> that may be making funders and institutions uncertain about
> whether to adopt
> (1) the Immediate-Deposit/Optional-Access (ID/OA) Mandate (also
> called the Dual Deposit/Release Mandate by Peter Suber)
> or to adopt instead
> (2) the equivocal "Delayed Deposit Mandate" that many mandators
> have adopted (essentially leaving it up to publishers when
> authors should *deposit* rather than just when they should
> make the deposit OA).
> Clearly, mandating immediate deposit and allowing the deposit to
> be Open Access immediately where feasible but Closed Access while
> there is a publisher embargo period (1) is infinitely preferable
> to a mandate that allows depositing itself to be embargoed (2).
> During the embargo, the article's metadata are still visible
> webwide (author, title, date, journal, etc.), so would-be users
> who need access immediately for their research can email the
> author to request a single fair-use copy of the deposit, to be
> sent by email. Hence it is important for all potential mandators
> to understand this clearly.
> This is of course especially pertinent to the "Fair Use" Button
> that is part of the Institutional Repository's interface. If a
> would-be user reaches a Closed Access deposit, they can cut/paste
> their email address into a box, and click on the "Fair Use"
> Button, which sends an automatic email request to the author,
> asking for authorization to email one individual eprint to the
> requester, for personal research use. The author can then just
> click on a URL to authorize the emailing of that individual
> eprint.
> Stevan Harnad
Received on Wed May 30 2007 - 04:18:05 BST

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