Re: Fair-Use/Schmair-Use...

From: Stevan Harnad <harnad_at_ecs.soton.ac.uk>
Date: Sun, 12 Aug 2007 22:59:10 +0100 (BST)

On Sun, 12 Aug 2007, Rick Anderson wrote:

> > No, Sandy, in science I would not; but in the case of these
> > legal terms and concepts -- applied to a new medium that
> > lawyers neither understand, nor one to which their obsolescent
> > terms and concepts are even coherently applicable -- it is the
> > "technical terms" that are the confused ones, and what is
> > needed is some common sense in their stead, to dispel the
> > confusion they create in the public mind.
>
> Stevan, could you give us, say, five examples of legal terms and
> concepts that are currently being used in this debate, and whose
> meanings are obsolete or otherwise inapplicable in the new
> medium?

Sure. And I am referring specifically to the OA debate, and the 2.5M
annual peer-reviewed journal articles that are OA's target content. (I
have no imperial designs or interests insofar as the digital domain Writ
Large is concerned.)

    (1) Fair Use

    (2) Intellectual Property

    (3) Copyright

    (4) Copy

    (5) Publish

There may eventually be ways to squeeze sense out of these terms again,
in the online era, for the specific case of OA's target content. But no
one I've heard so far (legal or lay) is coming anywhere near finding
those sensible, defensible reconstruals. It's all mostly incoherent,
anachronistic, pedantic, Procrustean prattle, often alarmingly, even
grotesquely, arbitrary, and transparently dysfunctional. The only reason
it gets any credence at all is because no one has any deeper ideas.

So I just steer clear of the juridical jargon altogether, taking it to
be moot until and unless someone comes up with something sensible that
really fits the new (online) medium as well as the needs of the new
(online) research community.

But I will definitely continue to use "Fair Use" as the descriptor for
"the Button." Not because I think there is a crisp legal issue at
issue, but simply because people *understand* what the button is for,
and how to use it, when it is put that way. ("Eprint Request Button" was
not nearly as effective or comprehensible.)

Just pragmatism, not jurisprudence...

Chrs, Stevan
Received on Sun Aug 12 2007 - 22:59:21 BST