Re: How the Immediate-Deposit/Optional-Access Mandate + the "Fair Use" Button Work

From: Stevan Harnad <>
Date: Wed, 1 Aug 2007 21:17:00 +0100

On Wed, 1 Aug 2007, Sandy Thatcher wrote:

> Sorry, Stevan, but if the author has the option to deny sending the
> article
> (on your second alternative), then in effect the author is either not
> giving
> permission to the requester to use it for the stated purpose or is making
> it
> more difficult for the requester to gain access to the article, and
> neither
> of these is properly considered a matter of "fair use." Fair use occurs
> without any process of permissioning involved, and it is not a matter of
> access anyway but of use; the requester can still make "fair use" of the
> content of the article when accessed in another manner.

Quite the opposite, Dear Sandy! All it takes is common sense (and abstention
from legalistic mumbo-jumbo that has no counterpart in the real world!):

I do some research. I discover something. I write it up. I submit it to a
journal for peer review, and, if accepted, publication. I deposit the final
accepted draft in my Institutional Repository. If my publisher endorses
immediate Open Access self-archiving, I make the deposit Open Access. If
my publisher prefers an embargo (and I feel like complying!), I make the
deposit Closed Access. A would-be user uses the Button to request a copy
of the deposit for research purposes. If I choose to do so, I click to
authorise the emailing of a copy to that user for research purposes.

End of story. Perfectly simple. Exactly the same as what has been going on
for a
half century, with requests for reprints by mail, but it has now been
adapted and
optimised for the online era.

I can think of no reason I would refuse to send an eprint to a requester for
research purposes, but, let's say, if I discover somehow that the requester
to use it to promote racism or terrorism, I might refuse. Absolutely nothing
on this. It's completely irrelevant to the point of substance under

The "fair use" is the requester's, if I send him the eprint, and mine, if I
to send him the eprint. That's transparent, and fits intuitively with what
we mean by
"fair use." But if there is some convoluted technical reason why you would
to call that something other than "fair use," call it "schmair use" and
let's leave
it at that.

Best wishes,

Stevan Harnad

> > How the Immediate-Deposit/Optional-Access Mandate + the "Fair Use"
> > Button Work:
> >
> >
> > Illustrates exactly how even embargoed (Closed Access) deposits can
> > provide
> > almost-immediate almost-OA -- as long the deposit itself is done
> > immediately upon acceptance for publication -- with the help of the
> > Institutional Repository's "Fair Use" Button.
> >
> > Stevan Harnad
> Sanford G. Thatcher
> Director, Penn State Press
> University Park, PA 16802-1003
> phone: (814) 865-1327
> fax: (814) 863-1408
Received on Wed Aug 01 2007 - 21:21:26 BST

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