>OA itself is a form of access-provision, not a form of
>publication. Gold OA is a form of publication.
This is a distinction without a practical difference,
Stevan, and
U.S. copyright law would not differentiate between the two;
both
Green OA and Gold OA would be technically defined as
"publication" under the law.
>Rick is again quite right concerning those copyright
transfer
>agreements that explicitly state "I waive my author
Fair Use
>Right to send individual copies to researchers
requesting my
>work." But as far as I know, no publisher has ever
drafted, and
>no author has ever signed, such an absurd contract. (So,
again,
>talking about it is merely formalism, of no practical
import for
>the real, practical matter at hand: researchers
providing free
>online access to their refereed research findings for
other
>researchers who want to use them.)
Most journal contracts I am familiar with specify the
transfer of
"all rights." Such a transfer means what it says,
quite
literally, and it is entirely unnecessary therefore to
include
any specific waiver of fair use rights. The very act of
transferring all rights effectively accomplishes that, and
nothing more needs to be added.
What you surely have in mind, Stevan, is the previous
practice in
the print world of publishers providing offprints of
articles to
their authors on publication, obviously intending for
authors to
make use of those offprints by sharing them with colleagues.
Once
photocopying took over, some publishers ceased the practice
of
providing offprints as a needless extra expense and, at
least
tacitly, allowed the practice to continue of authors making
(photo)copies of their articles for this same purpose. Now
Stevan
just assumes that the same practice naturally continues into
the
purely digital age, and I won't deny that many, probably
even
all, publishers accept this kind of copying as legitimate
and
don't intend to try preventing it. It is still not true,
however,
that the author retains any fair use right once an "all
rights"
transfer is effected. No such right exists, and only what
the
contract allows, or the publisher otherwise permits, makes
the
practice legitimate. That is the point Rick and I are trying
to
make, I believe.
--
Sanford G. Thatcher
Director, Penn State Press
University Park, PA 16802-1003
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