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

From: Stevan Harnad <amsciforum_at_GMAIL.COM>
Date: Sun, 15 Feb 2009 06:57:12 -0500

On Sun, Feb 15, 2009 at 6:16 AM, Sally Morris (Morris Associates)
<> wrote:

      The first step of the 'three step test' is important -
      the use has to be a 'special case' (i.e. not systematic)

The "non-systematicity" is in the author's individual, case-by-case
decision as to whether or not to fulfill each individual would-be
user's eprint request, exactly as was the case for a half century's
worth of reprint-requests sent by post. In the online era, would-be
users send email instead of sending post, and they are alerted of the
existence of the eprint not by skimming Current Contents or its
alerting service, but by skimming the harvester of the metadata from
(Open and) Closed Access deposits in IRs.

That's all there is to it. And the "non-systematicity" is precisely
the same non-systematicity it has always been. The IR Button is
merely the 21st century's technological equivalent of the ISI's
"request-a-print" service...

This is, as usual, the researcher's own discretionary right to send
his own research findings to any user he judges fit -- and woe betide
any publisher who has the faintest glimmer in his imagination of the
thought that the right of the publisher -- and the purpose of
research publication -- is to constrain in any way the author's right
to decide systematically whether or not to send a free copy of his
own findings to a would-be user for research purposes.


Stevan Harnad





      Sally Morris

      Partner, Morris Associates - Publishing Consultancy


      South House, The Street

      Clapham, Worthing, West Sussex BN13 3UU, UK


      Tel: +44(0)1903 871286

      Fax: +44(0)8701 202806



From: American Scientist Open Access Forum
On Behalf Of Arthur Sale
Sent: 15 February 2009 01:00
Subject: Re: Fair-Use/Schmair-Use...


I agree with Stevan. A simple reading of copyright law in some
countries does imply that if you sign away copyright you cannot
make copies. But there are many exceptions, including fair use.
And the law is an ass. In most cases it has not caught up with
the reality of IT and in any case it must be read in
conjunction with other law.


In practice, when I submit a paper to a journal there will be a
copy on my laptop, my home computer and my work PC (not to
mention a possible copy on a memory stick). The copy in a
repository follows soon after, to satisfy the record-keeping
requirements. In the ensuing days and weeks, other copies are
directly created by the automated back-up process at university
(including the repository) and stored somewhere. Multiple
copies are made en route to the publisher and back.


Only an insane publisher would contest any of this. They would
expect me to keep my article safe and backed up, just in case.
They would also know that any court would throw a case
contesting normal record-keeping and ICT practice out of the
window. The Australian Copyright Act is pretty up to date in
this respect and covers this, as in the extract below and
elsewhere. The red is my annotation. Note that this is Section
200 of the Copyright Act!


I write this at the risk of suggesting that more  angels can
dance on the head of a pin than is commonly thought of. We need
to do what is sensible and wait for the law to catch up, as it
will eventually.


Arthur Sale


Use of works and other subject-matter for certain purposes

             (1)  The copyright in a work or other
subject-matter is not infringed by a use of the work or other
subject-matter if all the following conditions exist:

                     (a)  the circumstances of the use
(including those described in paragraphs (b), (c) and (d))
amount to a special case;

                     (b)  the use is covered by subsection (2),
(3) or (4);

                     (c)  the use does not conflict with a
normal exploitation of the work or other subject-matter;

                     (d)  the use does not unreasonably
prejudice the legitimate interests of the owner of the

Use by body administering library or archives

             (2)  This subsection covers a use that:

                     (a)  is made by or on behalf of the body
administering a library or archives; and

                     (b)  is made for the purpose of
maintaining or operating the library or archives (including
operating the library or archives to provide services of a kind
usually provided by a library or archives); and

                     (c)  is not made partly for the purpose of
the body obtaining a commercial advantage or profit.

Use by body administering educational institution

             (3)  This subsection covers a use that:

                     (a)  is made by or on behalf of a body
administering an educational institution; and

                     (b)  is made for the purpose of giving
educational instruction; and

                     (c)  is not made partly for the purpose of
the body obtaining a commercial advantage or profit.



From: American Scientist Open Access Forum
On Behalf Of Stevan Harnad
Sent: Saturday, 14 February 2009 10:31 PM


On Sat, Feb 14, 2009 at 3:48 AM, Charles Oppenheim
<> wrote (in JISC-REPOSITORIES):


      Arthur [Sale] is wrong on his final point.  When an
      author assigns copyright to a publisher, the author
      gives away all rights.  It is equivalent to selling
      your house, your car or anything else.  Once you've
      sold it, you've no right to enjoy it's use any
      more, even though you were the previous owner.

      So when an author assigns copyright to a publisher,
      he or she has no rights to keep a back up copy,
      store it in a repository, etc., UNLESS the
      publisher graciously gives permission for the
      author to do so.  But what the publisher cannot do
      is demand deletion, etc., of earlier drafts of the
      manuscript, because the author has only assigned
      the final accepted version to the publisher.


With all due respect, if this were true, then the author could
not keep and store a paper copy of the final draft of his book
in his attic either (or, for that matter, his author's copy of
the published book). And, as we all know, "earlier drafts" are
a slippery slope. The "penult," which is the refereed draft
minus the copy-editing is an earlier draft. So is an author's
draft incorporating corrections.


No, the new medium has features that cannot be coherently, let
alone confidently described, let alone prescribed and
proscribed, in this papyrocentric way. The self-archiving
computer scientist (since the 80's) and physicist (since the
'90s) authors had it right: "Don't ask, Don't Tell, Don't Fret,
Just Do." Otherwise you will elicit a welter of inconsistent,
and in many cases incoherent opinion and counter-opinion whilst
you languish in a chronic state of Zeno's Paralysis (as 85% of
us foolishly persist in doing, for nigh on two decades now).


And while I'm in the pulpit, let me also point out that the
main reason for deposit mandates is not to force research
authors to do something they don't really want to do (a few
extra bureaucratic keystrokes, as some of the stalwart
defenders of "academic freedom" seem to imagine), for they all
want to maximise the usage and impact of their research (as a
half-century of keystrokes fulfilling reprint-requests proves):
It is to free these special authors from the irrational
inhibitions that keep them in their state of Zeno's Paralysis.


Apologies for this interruption. Please return to your solemn
discussion of angels, heads and pins...


Stevan Harnad


      On Sat, 14 Feb 2009 15:01:59 +1100
       Arthur Sale <ahjs_at_OZEMAIL.COM.AU> wrote:


      Let me assure you that you should credit that a
      court would accept a case
      that repositories fulfil other functions. Indeed in
      Australia we could argue
      that they are required by the Federal Government
      for the purpose of
      institutional publication reporting and research
      evaluation. Tasmanian law
      requires the university to keep records for
      long-term preservation under the
      Archives Act and so do most States.

      The other point you miss is that publishers have no
      rights to prohibit a
      restricted copy being mounted in a repository. If
      an author chooses to keep
      a copy of his or her article in one computer system
      or another (or is
      required to place a copy in a particular one) is of
      no concern whatsoever to
      a publisher. They might as well demand that the
      author delete the manuscript
      from their personal PC once it has been published!
      Indeed my departmental
      backup system makes regular copies from my PC
      somewhere and I don't bother
      enquiring where, nor does any publisher of my work.
      Neither do they demand
      that a particular filing cabinet be used for any
      paper drafts. None of this
      is of any concern to a publisher.

      You and I have had this argument before and you
      persist in this view, but it
      cannot go unchallenged if you keep making it. It
      does not stand up to

      Arthur Sale

      University of Tasmania

Received on Sun Feb 15 2009 - 11:58:06 GMT

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