Re: "Authors Re-using Their Own Work"

From: Stevan Harnad <amsciforum_at_GMAIL.COM>
Date: Sat, 1 Aug 2009 07:26:13 -0400

On Sat, Aug 1, 2009 at 5:20 AM, C.Oppenheim<> wrote:

> CO: Yes of course "fair use" and similar exceptions to copyright allow one to
> make a copy of item whose copyright is owned by someone else for oneself
> for research or private study as long as that copying does not damage the
> legitimate commercial interests of the copyright owner. But they do NOT
> allow you to distribute the copies to anyone who asks for them - that right
> always remains with the copyright owner. Depending on the country's legal
> systemm this is called "publication", "communication to the public",
> "issuing copies to the public" and so on, and is always ifringement. Fair
> dealing/fair use is for one's own private use.

All I can do is repeat what I said earlier, which is almost certainly
the real, practical truth of the matter here, regardless of the formal
exegetics, tried and tested through a half-century of actual
researcher practice:

>> SH: "there is nothing either
>> defensible or enforceable that a publisher can do or say to prevent a
>> researcher from personally distributing individual copies of his own
>> research findings to individual researchers, for research purposes, in any
>> form he wishes, analog or digital, at any time. That is what researchers
>> have been doing for many decades, whether or not their right to do so was
>> formally enshrined in a publisher's "author-re-use" document.

For a researcher to mail or email reprints or eprints to individual
researchers who request copies of his work for research purposes is
not to "distribute the copies to anyone who asks for them."

> CO: That's why my simple solution - don't assign copyright to the publisher in
> the first case - helps.

It is always desirable to reserve copyright where the
researcher/author can successfully do so, but that is not the case
that is at issue here. The case at issue here is the c. 37% of
peer-reviewed research journal articles for which the
researcher/author is either unsuccessful or uncertain about getting
his work published with his journal of choice if he does not assign
copyright to the publisher:

This author-worry is the main obstacle to both 100% spontaneous
self-archiving and to achieving 100% consensus on the adoption of
self-archiving mandates. This is what the ID/OA mandate as well as the
"email eprint request" Button were designed for;

The worry that the 50-year old uncontested research-author practice of
mailing or emailing reprints or eprints to individual researchers who
request copies of their work for research purposes would be
prosecutable on the grounds that is it illegal to "distribute the
copies to anyone who asks for them" is groundless, both intrinsically
and on the basis of a half century of practical precedent.

It is Open Access that would constitute distributing copies to anyone
who asks for them. Authors fulfilling individual requests for research
purposes constitutes normal research practice.

Open Access is of course the optimal and inevitable goal of research
and the research community in the online era; but where publishers use
copyright assignment to try to prevent or delay reaching that optimal
and inevitable goal (as the 37% of journals that embargo OA are trying
to do), ID/OA mandates and the "email eprint request" Button are the
practical interim solution, providing 63% OA and 37% "Almost-OA" to
tide over research needs during any access embargo.

Stevan Harnad

PS Although I abstain advisedly from any legal exegetics, I do note
that a law that does not make a distinction between the author of a
work (and not a "work for hire") and a 3rd party user (neither the author
nor the publisher) is a curious law indeed, particularly when it comes
to research writing and research usage. It does not follow, however,
that research practice should wait for a formal customization. Actual
concrete research practice has already trumped the many odd
theoretical construals and misconstruals that such an ill-fitting law
would support if the only thing we were interested in were abstract
hermeneutics rather than research progress.
Received on Sat Aug 01 2009 - 12:48:38 BST

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