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.
QED
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-----
> [mailto:owner-liblicense-l_at_lists.yale.edu] On Behalf Of Stevan Harnad
> Sent: 24 May 2007 01:44
> To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
> 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, C.Oppenheim_at_lboro.ac.uk 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.
> 
>       http://openaccess.eprints.org/index.php?/archives/71-guid.html
>       http://openaccess.eprints.org/index.php?/archives/136-guid.html
> 
> 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.
> 
>       http://www.eprints.org/news/features/request_button.php
>       http://wiki.dspace.org/index.php//RequestCopy
> 
> Stevan Harnad
> 
> 
Received on Wed May 30 2007 - 04:18:05 BST