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

From: Stevan Harnad <>
Date: Sat, 2 Jun 2007 13:08:47 +0100

On Fri, 1 Jun 2007 Sandy Thatcher, President, American Association of University
Presses, wrote:

> Actually, Stevan, I think it is confusing to speak of a fair use
> button at all here. The reason is that if something can be used
> under fair use, no permission is required at all.

That's the point. No permission is required at all.

> Now, under your
> closed/delayed access scenario, the would-be user obviously can't
> obtain a copy without gaining access somehow to it, and so the
> function of your fair use button is to provide a mechanism for
> the author to give the requester access to the article. But this
> is tantamount to giving permission to the user, and if permission
> is explicitly given in this way, fair use really doesn't pertain.

Look at how formalism obscures the obvious:

Sandy, here is the point: Researchers write articles reporting their
findings and publish them in peer-reviewed journal articles. They'd
like every potential user to be able to access and use those findings,
but because of access-tolls, many can't. So they would like to make the
articles freely accessible on the web, immediately. For 62% of articles,
the publisher has endorsed that practice. But for the remaining 38%,
their publisher prefers to embargo web access. So those articles are
deposited on the web as Closed Access (only metadata visible webwide)
and the Fair Use Button allows potential users to access them almost-OA,

I hope that makes it clearer. And I've managed to say it without making
any reference to the formal arcana or jurisprudence of rights.

> So it doesn't make sense to employ the terminology here; it is a
> red herring. Call it a permission or access button instead.

I am grateful for the advice, but I think "Fair Use Button" comes closest
to conveying the intended meaning in a transparent way, highlighting the
functional complementarity with OA. (I find the language of "permission"
for providing access to one's own work misleading and tendentious,
and I prefer to reserve "access" for Open Access.)

> The point still remains that you were talking about a scenario
> where the author already signed a contract, and you claimed that
> fair use rights remain the author's prerogative even after
> signing such a contract. Rick and I agree that this is not so.

I did not talk about any contract in particular, but of course
the pertinent contract is the one the author signs with the journal
publisher. That contract takes many forms, but none I have ever heard of
explicitly agrees to give up Fair Use rights. Hence this is a red herring.

> Fair use rights for everyone else remain, but not the author.
> Once a contract is signed, the author is bound by the terms and
> fair use doesn't apply.

Since no nonfictional journal article author has signed a contract of the
sort you describe (any more than any nonfictional borrower has signed
a contract trading a pound of his flesh as a collateral for a loan), I
suggest that we relegate all this hypothetical formalism to the confines
of fiction, where it belongs.

(If you really imagine, Sandy, that any author would be foolish enough
to agree to such an absurd and arbitrary formal condition, then rest
assured that a "3rd-Party Fair Use Button" can easily be jerry-rigged,
forwarding individual Fair-Use eprint requests from would-be users,
via the Antonian Author, to Anyone Else (a designated colleague), who
can then courageously hit the "authorise emailing of the eprint" button
in lieu of the Author, making use of the Fair Use rights he, unlike the
hapless Author, has duly retained. -- But I really must say that if I
every found myself having to make use of such far-fetched hypotheticals
to make a point, I would become suspicious of the point I was making. I
resort to them here only as a counter-hypothetical, playing the game of
empty formalism... The Fair Use Button, in contrast, is not hypothetical,
but very real, and practical.)

Stevan Harnad

> >Sandy Thatcher is confusing
> > (1a) Open Access Self-Archiving
> >and
> > (1b) Closed Access Self-archiving plus the Fair-Use Button.
> >
> >Sandy is also confusing the issue of
> > (2a) publishers who have or have not recently given their green light
> > to Open Access Self-Archiving (1a)
> >and
> > (2b) the longstanding fair-use practice by authors of mailing
> > paper reprints to requesters and, more recently, emailing eprints
> > to requesters.
> >
> >Unlike the above current and straightforward matters, the
> >question Sandy raises about what will turn out to be the
> >irreducible essentials of Gold OA journal publishing after Green
> >OA self-archiving reaches 100% -- (i) *if* the demand for the
> >paper edition ever vanishes, and (ii) *if* subscriptions ever
> >become unsustainable -- is a hypothetical one. Sandy asks
> >whether I think those essentials will consist of peer review
> >alone or peer review plus copy editing: My guess is no better
> >than anyone else's but I'll guess it'll be mostly just peer
> >review, with a little copy-editing added on too.
> >
> >(I've done more than my share of substantive editing too, and I
> >agree that most journal article authors are terrible writers. I
> >guess that's why they didn't become writers. I too would like to
> >see the level of journal article writing improved.)
> >
> >Stevan Harnad
Received on Sat Jun 02 2007 - 15:09:46 BST

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