Publication, Access Provision, and Fair Use

From: Stevan Harnad <>
Date: Sat, 2 Jun 2007 02:25:14 +0100

(1) In an academic's CV, under "Published Works," one lists books
and articles. Manuscripts merely posted online are listed under
"Unpublished Works."

(2) If the reprint of a published work is mailed or emailed to a
colleague, or posted online, that is not another published work, nor a
republished work: It is access provision, to a published work.

(3) Authors sending individual reprints and eprints of their own published
work to individual requesters, for research use, is Fair Use, uncontested,
and incontestable.

Some comments:

On Thu, 31 May 2007 Sandy Thatcher wrote:

> > SH:
> >OA itself is a form of access-provision, not a form of
> >publication. Gold OA is a form of publication.
> This is a distinction without a practical difference, Stevan, and
> U.S. copyright law would not differentiate between the two; both
> Green OA and Gold OA would be technically defined as
> "publication" under the law.
> I misspoke: as my colleague Ricky Huard on the AAUP Copyright
> Committee reminds me:
> My guess is that he's making a distinction based on the
> definition of "publication" in the 1976 Copyright Act: "the
> distribution of copies or phonorecords of a work to the public by
> sale or other transfer of ownership, or by rental, lease, or
> lending. . . . A public performance or display of a work does not
> itself constitute publication." If "access" equals "display" (as
> I suspect he may be thinking), he has a point, albeit a rather
> casuistic one: He's not copying and distributing--just inviting
> 300 million of his closest friends to see the display.

Both posting on the Web and giving away reprints or eprints of one's
own published work are access-provision not publication. Only giving
away reprints/eprints (for research purposes) is Fair Use.

> Most journal contracts I am familiar with specify the transfer of
> "all rights." Such a transfer means what it says, quite
> literally, and it is entirely unnecessary therefore to include
> any specific waiver of fair use rights. The very act of
> transferring all rights effectively accomplishes that, and
> nothing more needs to be added.

I retain the uncontested and incontestable right to give away single
reprints or eprints of my published work to individual requesters
for research purposes.

> What you surely have in mind, Stevan, is the previous practice in
> the print world of publishers providing offprints of articles to
> their authors on publication, obviously intending for authors to
> make use of those offprints by sharing them with colleagues. Once
> photocopying took over, some publishers ceased the practice of
> providing offprints as a needless extra expense and, at least
> tacitly, allowed the practice to continue of authors making
> (photo)copies of their articles for this same purpose.

For research purposes. That's Fair Use. Uncontested and incontestable.

> Now Stevan just assumes that the same practice naturally continues
> into the purely digital age, and I won't deny that many, probably even
> all, publishers accept this kind of copying as legitimate and
> don't intend to try preventing it.

So what is it that we are arguing about? I keep saying I am not interested
in formalism here but in actual practice, uncontested and incontestable.

> It is still not true, however,
> that the author retains any fair use right once an "all rights"
> transfer is effected. No such right exists, and only what the
> contract allows, or the publisher otherwise permits, makes the
> practice legitimate. That is the point Rick and I are trying to
> make, I believe.

I retain the right to give single reprints or eprints to requesters
for research purposes. That's the uncontested and incontestable practice
at issue here.

Stevan Harnad
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Received on Sat Jun 02 2007 - 12:09:16 BST

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