OA Mandates, Embargoes, and the "Fair Use" Button Stevan Harnad 22 May 2007 20:38 UTC

 [Exchange posted with permission from Profs. Rentier and Oppenheim]

On 21-May-07, Bernard Rentier, Rector, U Liege, wrote:

> > Dear Stevan,
> >
> > Can you give me some references on the authors' rights to use the
> > "Request eprint" button during the Editor's imposed embargo period
> > in the green OA model ?
> > Is it legal? Particularly after the author has given up his
> > copyrights to the editor.
> > Thanks
> >
> > Bernard

Dear Bernard,

Authors are entitled to distribute individual copies to reprint/eprint
requesters on an individual basis. This is called "Fair Use." It is
exactly the same thing that authors have been doing for 50 years, in
responding to individual mailed reprints requests, except that these
are email eprint requests.

You may consult with copyright lawyers if you wish. Fair use is not a
right that a copyright transfer agreement can take away from anyone,
especially the author!

The reply of my colleague Prof. Charles Oppenheim, an expert in these matters.
follows below.

Best wishes,
Stevan Harnad

On Tue, 22 May 2007, C.Oppenheim@lboro.ac.uk wrote:

> "Fair use" in the USA, "fair dealing" in the UK ("private copying" in
> continental Europe) are very similar but not identical concepts.  In a
> nutshell, they give a person the right* to make a copy of a copyright
> item for their research or private study (and also, in the USA only,
> for teaching purposes).  It also allows a person to request another
> person to make such a copy for him/her.  Thus I could email Bernard to
> ask him for a copy of an article he has written.  Bernard  is entitled
> to make that copy and send it to me if I want it for the purposes of
> research or private study.  It makes no difference if Bernard has
> assigned copyright in the item to a journal publisher or not.
> Stevan is correct that this right* was the basis of delivering
> p/copies and reprints to requesters in years gone by; the only
> difference these days is that it is done electronically.
> Charles
> * Strictly speaking, a lawyer would emphasise that fair use/fair
> dealing/private copying is not a "right", but "an exception to
> copyright", but the distinction is meaningless in practice.
> Professor Charles Oppenheim
> Head
> Department of Information Science
> Loughborough University
> Loughborough
> Leics LE1 3TU
> Tel 01509-223065
> Fax 01509 223053

It is hence important to clear up any lingering misunderstandings that
may be making funders and institutions uncertain about whether to adopt

    (1) the Immediate-Deposit/Optional-Access (ID/OA) Mandate (also
    called the Dual Deposit/Release Mandate by Peter Suber)

or to adopt instead

    (2) the equivocal "Delayed Deposit Mandate" that many mandators have
    adopted (essentially leaving it up to publishers when authors should
    *deposit* rather than just when they should make the deposit OA).

Clearly, mandating immediate deposit and allowing the deposit to be
Open Access immediately where feasible but Closed Access while there is a
publisher embargo period (1) is infinitely preferable to a mandate that
allows depositing itself to be embargoed (2).

During the embargo, the article's metadata are still visible webwide
(author, title, date, journal, etc.), so would-be users who need access
immediately for their research can email the author to request a single
fair-use copy of the deposit, to be sent by email. Hence it is important
for all potential mandators to understand this clearly.


This is of course especially pertinent to the "Fair Use" Button that is
part of the Institutional Repository's interface. If a would-be user
reaches a Closed Access deposit, they can cut/paste their email address
into a box, and click on the "Fair Use" Button, which sends an automatic
email request to the author, asking for authorization to email one
individual eprint to the requester, for personal research use. The
author can then just click on a URL to authorize the emailing of that
individual eprint.


Stevan Harnad

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