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

From: Stevan Harnad <>
Date: Thu, 23 Aug 2007 03:18:15 +0100 (BST)

On Wed, 22 Aug 2007, Sandy Thatcher wrote:

> For a scientist, Stevan, you sometimes make some astonishingly broad
> generalizations. E.g., in response to Rick Anderson you wrote:
> At 4:18 PM -0400 8/15/07, Stevan Harnad wrote:
> > (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.
> > (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.
> Well, I can tell you of some authors whose articles we have published in
> our scholarly journals who have profited handsomely (in the thousands of
> dollars) from frequent reproduction of their articles in commercial
> anthologies and university course packs. (In one case recently we received
> a payment of $14,000 from CCC for a large amount of copying done from an
> edited volume in a number of universities overseas.) They have all cashed
> the checks we sent them, so presumably they did "want" the money even
> though they weren't motivated originally to write by the pursuit of
> profit.

Simple reply:

(1) That's certainly not the reason those authors wrote those articles.

(2) I didn't say researchers (or anyone) would not welcome a windfall
bonus, if it happens.

(3) How often do you think this kind of windfall hits the authors of the
annual 2.5 million articles published in the planet's 25,000
peer-reviewed journals?

> Below you say I'm confused about fair use in your "Fair Use Button"
> because I really don't like the implication it might have for books. Well,
> as I've just said in response to Peter's posting, I have no problem with
> an author supplying a colleague with a single copy of an article for
> research and teaching purposes, so we have no disagreement there in
> principle.

So what are we arguing about?

> (See my questions about responding to requests resulting in multiple-copy
> distributions, however.)

See my reply: The Fair Use Button is for free, one-on-one copies.

> But you are simply wrong that book authors are not interested in giving
> away their book content for free.

I didn't say none were. I just said many (most) aren't, whereas all
journal-article authors. without exception, are.

> In university press publishing many authors are paid no royalties, and
> some are even asked to supply subsidies, and these authors would have no
> compunction about giving away their books for free. They could readily
> fall under your three points about what scholarly authors really "want."

Eventually such books will probably come under the OA banner. But right
now, the only exception-free give-away domain is journal articles, and
that is where OA needs to focus first.

> Even some high-profile authors like Larry Lessig and Yochai Benkler have
> persuaded their publishers to allow them to post their books online for
> free. So, as a generalization, that is much too broad.

My generalization was perfectly correct: All journal articles are author
give-aways; not all books are. That's all.

> So, too, is your flat assertion that "books are not peer reviewed." I
> guess you're not aware that to be a member of the Association of American
> University Presses a university-based publisher MUST have a process of
> peer review in place, and every book published by an AAUP-member press is
> peer reviewed.

I don't think the academic community will agree with you that books are
peer-reviewed publications. Books are reviewed, sometimes rigorously.
But that is not what is considered peer-reviewed publication by the
academic community.

To repeat: There are potential affinities between the peer-reviewed
journal article literature and certain scholarly/scientific books, and
OA will no doubt generalize from the former to some of the latter
eventually. But not yet. OA first has to prevail on its own
exception-free home turf: peer-reviewed research journal articles,
written for research impact, not for royalty income, without exception.

> That's about 8,000 per year! Add to that the many thousands more
> published by academic commercial publishers, which may not be required to
> conduct peer review but generally do. So, peer review is NOT a
> differentiating factor between scholarly journals articles and scholarly
> books.

Sandy, nothing much hinges on this, but please conduct a poll on whether
a research finding can be characterised as peer-reviewed if it appears
in a book rather than a peer-reviewed journal. (Often books do integrate
findings that have been published in peer reviewed journals.)

> Finally, your reply to Rick that copyright has been applied 95% to
> protecting against against illegal making of multiple copies is a number I
> think you have just pulled out of the air. There are many, many cases of
> alleged infringement that do NOT involve simple duplication or
> redistribution (the "reproduction right" is only one of six listed in
> Section 106), such as all those involving charges of plagiarism, creation
> of derivative works, parodies, public performances and display, etc.

I was not counting the number of cases of litigation or infringement;
I was talking about what copyright is used for. (Peer-reviewed journal)
authors certainly care about plagiarism, corruption and unattributed
use; that's theft of authorship and corruption of text. But you don't
need to forbid copying for that!

> Authors do care about these other uses, I daresay, and there are no other
> laws than copyright to protect them against such misuses.

"Copyright" -- remember, it's one of the five terms I said was obsolete
in the online era -- concerns the right to make copies. To forbid
plagiarism, corruption, or unattributed use, you don't need to forbid
faithful copying. ("Copy" is another of those paper-era words that is
moot now.)

> So, however much you'd like to see it go away, copyright retains important
> functions in the digital age. Even some authors of scholarly journal
> articles might be exercised by, say, the kind of parody that Alan Sokal
> famously performed in mimicking postmodernist writing,

You think that's a copyright violation? Or a violation of anything at

> and in some situations copyright law might protect a scientist like Sokal
> who performed a parody of a piece of writing by another scholar!

I couldn't quite follow that. As far as I recall, Sokal did a parody on
a style or form of writing: What has that to do with copyright issues?

Stevan Harnad
Received on Thu Aug 23 2007 - 03:18:26 BST

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