[GOAL] Re: [SCHOLCOMM] 1st-Party Give-Aways vs. 3rd-Party Rip-Offs

[Sandy Thatcher]

Technically, it probably is better to regard the eprint request 
Button as a function facilitating personal use rather than fair use. 
(Stevan once used to call this the "fair use button.")  The Copyright 
Act of 1976 does not directly address personal use, as it does fair 
use in Sec. 107, except in an addition that was later made to deal 
with home audiotaping.  The concept has arisen in some court cases, 
most notably the Sony case involving "time-shifting" of videotaping 
of TV shows for later viewing. But there remains a lot of debate 
about what personal use covers. It will likely be a subject of much 
discussion in the forthcoming hearings in Congress over comprehensive 
reform of copyright law.

Sandy Thatcher


At 10:37 AM -0400 8/7/13, Stevan Harnad wrote:
>If supplying eprints to requesters could 
>be <https://theconversation.com/neuroscientists-need-to-embrace-open-access-publishing-too-16736#comment_198916>delegated 
>to 3rd parties like Repository Managers to perform automatically, 
>then they would become violations of copyright contracts. 
>
>What makes 
>the <https://wiki.duraspace.org/display/DSPACE/RequestCopy>eprint-request 
>Button legal is the fact that it is the author who decides, in each 
>individual instance, whether or not to comply with an individual 
>eprint request for his own work; it does not happen automatically. 
>
>Think about it: If it were just the fact of requesters having to do 
>two keystrokes for access instead of just one (OA), then the 
>compliance keystroke might as well have been done by software rather 
>than the Repository Manager! And that would certainly not be 
>compliance with a publisher OA embargo. "Almost OA" would just 
>become 2-stroke OA.
>
>No. What makes 
>the <https://wiki.duraspace.org/display/DSPACE/RequestCopy>eprint-request 
>Button both legal and subversive is 
>that <http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/0671.html>it 
>is not 3rd-party piracy (by either a Repository Manager or an 
>automatic computer programme) 
>but <http://eprints.soton.ac.uk/262893/1/resolution.html#9.1>1st-party 
>provision of individual copies, to individual requesters, for 
>research purposes, by the author, in each individual instance: the 
>latter alone continues the long accepted tradition of 
>reprint-provision by scholars and scientists to their own work. 
>
>If reprint-request cards had been mailed instead to 3rd-parties who 
>simply photocopied anyone's articles and mailed them to requesters 
>(with or without a fee) the practice would have been attacked in the 
>courts by publishers as piracy long ago.
>
>The best way to undermine the Button as a remedy against publisher 
>OA mandates, and to empower the publishing lobby to block it, would 
>be to conflate it with 2-stroke 3rd-party OA!
>
>That practice should never be recommended.
>
>Rather, make crystal clear the fundamental difference between 
>1st-party give-away and 3rd-party rip-off.
>
>
>[Parenthetically: Of course it is true that all these legal and 
>technical distinctions are trivial nonsense! It is an ineluctable 
>fact that the online PostGutenberg medium has made technically and 
>economically possible and easily feasible what was technically and 
>economically impossible in the Gutenberg medium: to make all 
>refereed research articles -- each, without exception, an author 
>give-away, written purely for research impact rather than royalty 
>income -- immediately accessible to all would-be users, not just to 
>subscribers: OA. That outcome is both optimal and inevitable for 
>research; researchers; their institutions; their funders; the R&D 
>industry; students; teachers; journalists; the developing world; 
>access-denied scholars and scientists; the general public; research 
>uptake, productivity, impact and progress; and the tax-payers who 
>fund the research. The only parties with whose interests that 
>optimal outcome is in conflict are the refereed-research 
>publishers who had been providing an essential service to research 
>in the Gutenberg era. It is that publishing "tail" that is now 
>trying to wag the research "dog," to deter and delay what is optimal 
>and inevitable for research for as long as possible, by invoking 
>Gutenberg-era pseudo-legal pseudo-technicalities to try to embargo 
>OA, by holding it hostage to their accustomed revenue streams 
>and modus operandi. OA mandates, the immediate-deposit clause, and 
>the eprint-request Button are the research community's means of 
>mooting these delay tactics and hastening the natural evolution to 
>the optimal and inevitable outcome in the PostGutenberg era.]
>
>Sale, A., Couture, M., Rodrigues, E., Carr, L. and Harnad, S. 
>(2012) <http://eprints.ecs.soton.ac.uk/18511/>Open Access Mandates 
>and the "Fair Dealing" Button. 
>In: <http://www.utppublishing.com/Dynamic-Fair-Dealing-Creating-Canadian-Culture-Online.html>Dynamic 
>Fair Dealing: Creating Canadian Culture Online (Rosemary J. Coombe & 
>Darren Wershler, Eds.)


-- 
Sanford G. Thatcher
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