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

From: Stevan Harnad <>
Date: Tue, 5 Jun 2007 16:31:10 +0100

On Tue, 5 Jun 2007 Sandy Thatcher wrote:

> If there are any lawyers lurking on this list, I would appreciate
> an opinion. Does a contract that transfers "all rights" (using
> that language), which is what most journal contracts I have seen
> actually say, leave any rights to the author that are not
> specified explicitly in the agreement?

That's the right question. And in particular, does such a contract
(absurdly) deny the author alone fair-use rights that are retained by
every other person on the planet? (That's the hub of the question: The
answer will be of course be No, it does not, unless that renunciation
is added as an explicit -- and absurd -- extra contractual condition,
which it never is. And if some lurking lawyer should opine otherwise,
ask him if he thinks such an implicit, inherent absurdity is enforceable,
and if not, why we are talking about it...)

> Unless I have sadly
> misconstrued contract law for the past forty years, I do not
> think so. Stevan seems to think that turning over all rights
> means something less than that language would ordinarily imply,
> and that it is up to every author who signs a contract to
> interpret what rights remain to him or her under "fair use."
> Since anyone who knows fair use jurisprudence well understands,
> that provides very wide latitude for interpretation, which would
> mean that contract law would end up having a gaping hole in it if
> such a "fair use" privilege were somehow to survive the signing
> of a contract.
> And, by the way, such "all rights" transfers are not confined to
> journal articles. They are the typical transfers used by academic
> publishers with book authors who are not represented by literary
> agents (as few are).

The fundamental difference between journal-article copyright contracts
and book copyright contracts is not so much what the author can or can't
do, but what the author would ever *want* to do. Most book authors go
to publishers rather than to give-away vanity presses because they want
their books to be marketed and to *sell* (and they want a cut of the
sales revenues). Peer-reviewed journal article authors do not, and never
have. They only want their articles to be read, used, applied and cited
in further research by as many users as possible; they never seek or
see a penny of royalty income.

So if there is a fair-use loophole for individual author give-aways
in both cases -- income-seeking books and impact-seeking articles --
what has prevented it from surfacing since the online era is the simple
fact that most book authors are simply *not interested* in giving away
their books online (apart from a few promotional review copies) whereas
*all* peer-reviewed journal article authors are.

    Harnad, Stevan (2001/2003) For Whom the Gate Tolls? Published
    as: Harnad, Stevan (2003) Open Access to Peer-Reviewed
    Research Through Author/Institution Self-Archiving:
    Maximizing Research Impact by Maximizing Online Access.
    In: Law, Derek & Judith Andrews, Eds. Digital Libraries:
    Policy Planning and Practice. Ashgate Publishing 2003.
    [Shorter version: Harnad S. (2003)
    Journal of Postgraduate Medicine 49: 337-342.
    [French version: Harnad, S. (2003) Ciélographie et ciélolexie:
    Anomalie post-gutenbergienne et comment la résoudre.
    In: Origgi, G. & Arikha, N. (eds) Le texte à l'heure
    de l'Internet. Bibliotheque Centre Pompidou. Pp. 77-103.]



> >On Fri, 1 Jun 2007 Sandy Thatcher, President,
> >Association of American 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,
> >almost-immediately.
> >
> >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
> --
> Sanford G. Thatcher
> Director, Penn State Press
> USB 1, Suite C
> 820 N. University Drive
> University Park, PA 16802-1003
> phone: (814) 865-1327
> fax: (814) 863-1408
Received on Tue Jun 05 2007 - 16:55:15 BST

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