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

From: Stevan Harnad <>
Date: Tue, 21 Aug 2007 21:31:31 +0100 (BST)


Very interesting and I think we are making progress in understanding
one another, but we are still not quite there: If one took what you
appear to be saying below literally, then the millions (maybe billions)
of photocopies of their own articles that authors have been mailing to
reprint-requesters for the past half-century could not have been mailed,
because those authors had signed away their right to do so.

I don't believe anything they ever signed took away that right; and if on
someone's theoretical construal they *are* construable as having done so,
then there is no way that that the exercise of that right could ever be
prevented, or any attempt to prevent it be justified.

That is why I take this all to be an exercise in hypothetical
hermeneutics, not real-world research and researcher practice. In the
real world, researchers never asked themselves or anyone else whether
they had the right to send photocopies of their very own articles to
would-be users who asked for them; they just sent them: first photocopies
by mail, and now eprints by email.

It is conceivable that if, over 5 decades ago, an author, having
received a reprint request, had formally consulted an IP specialist
instead of just xeroxing a copy and licking the stamp, to ask:
"May I do this?" he might have received the advice: "No, you may not,
unless you renegotiate your copyright agreement with your publisher."

I submit that this would have been appallingly bad advice then, and it
continues to be bad advice now. Researchers are quite right to just go
ahead and do the sensible, natural thing with their own work (short of
republishing it), without seeking "expert" advice.

(I could go further, and add that the physicists and computer scientists
[and countless others in other fields] who have [again without seeking
any specialist's advice] been posting their preprints and postprints on
their websites and Arxiv [and even earlier on their FTP sites] without
a single legal challenge for nearly 2 decades now were likewise doing
the sensible thing. But since the non-posters seem in part to be
inhibited today because of what they think is expert advice, I will leave
that moot for now: I am not talking about OA posting, just about
fulfilling an individual request for an individual copy.)

Charles Oppenheim suggested that the 5-decade-long uncontested
(and incontestable) practice of mailing individual reprints (and now
emailing individual eprints) is not so much the exercise of so-called
"fair-use/dealing rights" but rather the exercise of a natural exemption
from copyright transfer agreements. (I'd say fair-use/schmair-use --
practically speaking it all amounts to exactly the same thing!)

As to the two examples you cite below, Peter:

> [1] one faculty member here [got] charged $400 to reproduce a figure
> from one of his articles, and [2] a graduate student [got] charged $1500
> to
> reproduce one of his articles in his dissertation. Stupid? Yes. Legal?
> Also yes...

I would reply that [1] is completely irrelevant to what we are discussing
here, because we are discussing the author giving an individual copy to
an individual requester here, not republication, all or in part.

For [2] there might also be a sleazy stretch by which a dissertation
could be construed as a "publication," again collapsing it into case
[1] above. I think this sort of nonsense has been exorcised from most
copyright transfer agreements today, but again [2] is completely
irrelevant to the case under discussion here, which is not about
republication, but but about the author giving an individual copy to an
individual requester.

(I hope you won't now tell me, Peter, that even to make a photo-copy, or
to run off a hard copy, of my very own paper, I need to have specifically
retained that right from my publisher. We have to draw some rational lines
in the sand, otherwise we will find ourselves having to include a formal
contract with our theater tickets to the effect that whilst sitting in
our purchased seats, we are entitled to breathe in the accompanying air!)

If I were that graduate student, by the way, there is no way on earth I
would have paid my article-publisher a penny for submitting it as part of
my dissertation. If he wants to go after anyone, let the publisher try
to go after whoever tried to *publish* the dissertation. I, as student,
merely *submit* it, my own research findings, as partial fulfillment of
my degree requirements. (If that's not "fair use," I don't know what is!)

Chrs, Stevan

On Tue, 21 Aug 2007, Peter Hirtle wrote:

> Stevan, the problem is becoming clearer. You feel that an author still
> has some rights in an article even after he or she has signed away all
> rights to that article. Specifically, you believe the author retains the
> ability to give away copies of the article, even in a systematic fashion,
> upon demand. I personally agree with you that authors should be able to
> do this. But if they want to do it, then they need to stop turning over
> all of their copyrights to publishers, and instead explicitly retain
> these rights themselves. If they do sign a copyright transfer agreement
> that transfers all rights to the publisher, then the authors have no more
> legal right to make one of the articles that they authored available
> through your system then they would have to provide one of my articles.
> In both cases, all of the copyright rights, including the exclusive right
> to reproduce and distribute a work, belongs to someone else. The bottom
> line: you can't sign a legal contract with binding terms that transfers
> all of your rights and then claim that you can do something else because
> it is 'traditional' or because it is what you really meant. If you want
> to be able to do the things you want to do, use the Scholars Commons
> Addendum Engine to generate a contract amendment that preserves those
> rights for you. And when you have done that, you are not using 'fair use'
> to deliver those copies to users - but are instead exploiting a right
> that you have retained. You wrote: "Anyone who imagines that an author
> can (or should) be prevented from photo-copying his *own* article for
> whatever use he sees fit is living on another planet." Well, I haven't
> seen an author get sued for copying his or her own article yet, but we
> have had one faculty member here get charged $400 to reproduce a figure
> from one of his articles, and a graduate student be charged $1500 to
> reproduce one of his articles in his dissertation. Stupid? Yes. Legal?
> Also yes - because in both cases, the authors signed a legally binding
> document that transferred all of their rights to the publisher. Peter B.
> Hirtle
Received on Tue Aug 21 2007 - 21:31:50 BST

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