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

From: Stevan Harnad <>
Date: Tue, 14 Aug 2007 23:54:43 +0100 (BST)

On Tue, 14 Aug 2007, Rick Anderson wrote:

> Stevan, having provided five examples of legal terms that you
> consider obsolete, can you explain what makes them so in the new
> environment? Why, for example, is the concept of "copyright" now
> obsolete? Should the creators of original works have no
> exclusive rights anymore -- and if not, why not? And if the
> concept of "publication" is obsolete, why do you insist on such a
> narrow definition of the term (to exclude, for example, public
> distribution by means of OA archiving)?

Rick, fair questions, and I'll try to oblige:

(a) I have no view on any of the 5 terms (fair use, intellectual
property, copyright, copy and publishing) as used in the digital domain
in general. I am speaking only about the 2.5 million articles per year
publishing in the world's 25,000 peer-reviewed journals. And the "new
environment" is the PostGutenberg online environment -- which is, for
these authors, the OA environment.

(b) Every single one of those articles (without exception, and in stark
contrast to the rest of the digital domain) is written, and always has
been written, purely for the sake of research usage and impact, not for
royalty income.

(c) Hence all the royalty/rights-based legislation and terminology
implicit and explicit in those 5 moot terms -- moot in this, the
research/OA domain: nolo contendere elsewhere -- are simply irrelevant
and inapplicable to these 2.5 million articles and their authors in
the PostGutenberg (OA) era.

(d) All these authors want only three things: (1) to have their papers
peer-reviewed by an established peer-review authority (with a
track-record for quality and rigor) and (2) to have those peer-reviewed
papers (certified as such, by the name of the journal that implemented
the peer review) accessible online to every potential user on the planet,
with absolutely nothing blocking their (online) access -- least of all
whether the would-be user's institution happens to be able to afford
to pay for subscription access to the journal in which it happened to
be published.

(That, by the way, is precisely what they mean by "publication," no more
nor less: Certified as having met the peer-review standards of an
established peer-review authority, i.e., a peer-reviewed journal. Not
vanity-press self-posting or blogging -- which is not to say that such
things may not sometimes be of interest to some too.)

(e) The third thing these authors want is (3) to retain their authorship
of their works -- that is, to make sure their texts are not altered or
plagiarized and put forward as someone else's work; and to try to make
sure they are used with attribution.

(f) No, the moot notions of IP and copyright are *not* what these
authors want or need in order to protect their authorship. IP and
copyright have always been 95% preoccupied with protecting from illegal
(read: "unpaid") "copying" (moot) of the text, which these authors have
no interest whatsoever in preventing.

So much for IP, copyright, copy, and publication. Fair use (for these
authors, of these works) is the use I have just described.

Until and unless the 5 moot Gutenberg terms can fully align themselves
with the needs and wishes of this special community of authors -- the
peer-reviewed research community -- they are of no use to us in the
PostGutenberg OA era.

    Five Essential PostGutenberg Distinctions

Stevan Harnad
American Scientist Open Access Forum

Chaire de recherche du Canada Professor of Cognitive
Science Institute des sciences cognitives Electronics & Computer
Université du Québec à Montréal University of
Southampton Montréal, Québec
Highfield, Southampton
Canada H3C 3P8 SO17 1BJ
United Kingdom
Received on Tue Aug 14 2007 - 23:54:52 BST

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