Re: Re-Use Rights Already Come With the (Green) OA Territory

From: Stevan Harnad <>
Date: Mon, 15 Oct 2007 16:35:10 +0100

In Open Access News, Peter Suber wrote (by way of reply)

> Comments. I hope no one minds if I reprint my comments from June 12 2007
> in which I responded in detail to a very similar post by Stevan:
> Stevan isn't saying that OA doesn't or shouldn't remove permission
> barriers. He's saying that removing price barriers (making work
> accessible online free of charge) already does most or all of the
> work of removing permission barriers and therefore that no extra
> steps are needed.

So far this is exactly correct -- except I would definitely say
that Green OA self-archiving removes not just "most" but *all* the
"permission barriers" pertinent to research use, which is what OA is all
about. Remember that there is also a "permission barrier" to re-publishing
in print, but OA is not and never was intended to address that!

> The chief problem with this view is the law. If a work is online
> without a special license or permission statement, then either it
> stands or appears to stand under an all-rights-reserved copyright.
> The only assured rights for users are those collected under fair
> use or fair dealing. These rights are far fewer and less adequate
> than OA contemplates, and in any case the boundaries of fair use
> and fair dealing are vague and contestable.

If "naked" (unlicensed) content on the web is really a barrier to use,
how come we are not hearing about the need to license *all* web content
(e.g. advertisements, blogs) because people are otherwise afraid to
download, print, store and otherwise "re-use" them? (Answer: Because
people *are* doing all those things, without hesitation.)

I think the truth is the exact opposite! That the default option, if
something is freely accessible on the web, is that it's fine to do all
those other things that come with it, and then some. (You can't even
view web content without downloading and "storing" at least for long
enough to read, yet that downloading and storing are not explicitly

Far from perceiving themselves as being stuck behind
"permission barriers" when they surf the web except when explicitly
license to do otherwise, web users usually (wrongly) assume that they
have even *more* rights than what comes with the territory: They will,
for example, not only read, download, store, and print copyrighted web
images, but also re-post them online, identically or in "derivative" form,
and sometimes even re-publish them in print publications, identically or
in "derivative" form. You actually have to have shrill "you may *not*"
notices to try to discourage them from going overboard like that!

Now I have no particular interest in these excesses one way or the
other (either to cultivate them or to curb them). But I think that they
clearly illustrate that the "problem", if any, is precisely the reverse of
what is being imagined by those who think that self-archived OA content
needs a formal permissive license over and above just being there, free
for all on the web, otherwise it risks not being used beyond on-screen
reading! All seven individual uses I described in my earlier posting (as
well as the two robotic ones) can be and are being fully exercised for
all Green OA content today -- and there just aren't any further uses to
which OA can justifiably lay claim (as OA).

> This legal problem leads to a practical problem: conscientious
> users will feel obliged to err on the side of asking permission
> and sometimes even paying permission fees (hurdles that OA is
> designed to remove) or to err on the side of non-use (further
> damaging research and scholarship). Either that, or conscientious
> users will feel pressure to become less conscientious. This may
> be happening, but it cannot be a strategy for a movement which
> claims that its central practices are lawful.

Paying permission fees for Green OA content? Paying whom?

I honestly cannot imagine who or what you have in mind here, Peter! I am
conscientious about not re-using web-accessible images in re-postings
or publications unless I know they are public domain or I have
permission. But I (and every other researcher on the planet) don't give
a second thought as to whether I may read, download, store, print-off,
and re-use the contents -- but not the verbatim text (which is like the
image) -- of journal articles we can access freely on the web.

I am not feigning puzzlement: I am truly baffled about why, when the
reality is the exact opposite, OA advocates, of all people, would worry
that web users might be too coy (or "conscientious") to do with OA texts
exactly the same things that we all do with all other free web content
-- and too coy or "conscientious" to do so specifically in the case
OA texts, of all things, because they lack a formal *license* to do it
(exactly as virtually all other web content lacks such a license!).

[Could it be, Peter, that when you think of "unlicensed OA content" you
are thinking of hybrid Gray/Gold publishers, who take an author's money,
but don't adopt the full Creative Commons License that that money has
surely paid for? I would probably agree with you on such cases, but my
paradigmatic case is not paid Gray/Gold OA but Green OA, where it does
not matter what copyright transfer agreement an author has signed *as
long the journal endorses immediate Green OA self-archiving*, as 62%
already do. All the rest comes with the Green OA territory.]

I think part of the problem is that (some) OA advocates may indeed be
over-reaching in what they are taking to be licensed by "OA". I make
absolutely no bones about the fact that the right to re-publish the
verbatim text, online or on-paper, is *not* part of OA and never was,
just as plagiarism or re-publishing a corrupted "derivative" version of
the text is not and never was a part of OA, online or on-paper.

OA is a new capability opened up by a new medium. I quote your own
stirring words:

    "An old tradition and a new technology have converged to make possible
    an unprecedented public good. The old tradition is the willingness
    of scientists and scholars to publish the fruits of their research
    in scholarly journals without payment, for the sake of inquiry
    and knowledge. The new technology is the internet. The public good
    they make possible is the world-wide electronic distribution of the
    peer-reviewed journal literature and completely free and unrestricted
    access to it by all scientists, scholars, teachers, students, and
    other curious minds."

The unprecedented public good is free online access to what used to
require paid on-paper access. This does not license re-publication or
"derivative works" (cut-pasted from the verbatim text), online or on
paper, but the remarkable property of the new technology is that it
does not need to! For one of the other things that "comes with the
[Green OA] territory" is that anyone, anywhere, can access (and print
off) the online text, any time. Re-publication is not licensed, it is
*mooted*. There is simply no need for it. (The worriers about licensing
content for "course-packs" are still thinking the old way: OA content
does not need a license to be put in a course-pack: The text does not
need to be put in a course-pack! Only its URL does.)

So, having disposed of the red herring of a special license that is
supposedly needed to allow downloading, storing, and printing-off of
freely available web content, we now see that there is no need to license
re-publishing either, either online or on paper. What is left? Harvesting,
data-mining and derivative works. Harvesting, as noted, likewise comes
with the territory. If google did not have to be licensed to harvest
the rest of the web, why on earth would we imagine that it needed to be
licensed to harvest OA content, of all things? Ditto for the data-mining
by harvesting robots. (Individual data-mining on your downloaded copy
is not even at issue.)

Now what about "derivative works"? Let's be specific: re-publication
of verbatim OA texts, online or on paper? That is not allowed without
permission -- but nor is it needed, because a collection of URLs does
the trick just as well.

Altered or corrupted versions of the OA texts? Apart from attributed
fair-use excerpts, that is not allowed without permission either. But what
would ever have made anyone think that the invention of a new technology
that would allow unlimited access to authors' give-away texts would mean
that authors would all want to license that those texts, besides being
accessible, should be alterable or corruptible, ad lib? Surely we are
happier with requiring specific case-by-case permission for such further
uses, rather than a blanket license under the guise of "OA"?

What uses are left that research or researchers could possibly want, as
a general rule: Harvestability into a commercial, pay-to-use database?
It seems to me that that is no longer an OA matter. Indeed, authors might
prefer to license their content to free database providers in preference
to commercial ones. But either way, that is not part of OA, which was
about "completely free and unrestricted access to it by all scientists,
scholars, teachers, students, and other curious minds." Nothing there
about commercial interests.

> This doesn't mean that articles in OA repositories without special
> licenses or permission statements may not be read or used. It
> means that users have access free of charge (a significant
> breakthrough) but are limited to fair use.

"Fair use" was a paper-based notion. In the case of the online medium,
"fair use" quite naturally, indeed unavoidably, expands to include
everything else that comes with the online territory. In the case
of freely accessible web documents, that "fair use" simply includes
downloadability, storeability, printability, and data-minability, for
individuals; and, for harvesters: robotic harvestability, data-minability,
and certain derivative services (though I would not venture to specify
which, though they certainly include free boolean searchability). With
the Green OA territory comes also the accessibility online to everyone
everywhere, mooting forever all need for collections, course-packs,
re-publications, or other such "derivative works," online or on paper. For
individual "derivative works," some form of "fair use" criterion still
has to apply to determine how much verbatim content is permissible
without the original author's permission.

Stevan Harnad
Received on Mon Oct 15 2007 - 16:47:12 BST

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