I think Sandy Thatcher continues to have several different
things
a bit mixed up, but it does not matter much because he is
talking
mainly about books whereas I am talking only about journal
articles.
Here it is again, de-mixed:
(1) What I am calling Fair Use is authors emailing eprints
of
their own articles to individual eprint requesters, for
research
purposes, as they have been doing with paper reprints or
photocopies, by regular mail, for a half century.
(2) I have no "model," but I suppose you could say
that there is
a compromise institutional and funder self-archiving mandate
that
I advocate as a model (when a stronger mandate cannot be
successfully and quickly agreed upon): The
Immediate-Deposit/Optional-Access Mandate (ID/OA), requiring
deposit of the final draft immediately upon acceptance for
publication, but only recommending, not requiring, immediate
setting of access to that deposit as Open Access. Closed
Access
deposit plus the "Fair Use" (Eprint Request)
Button is then
available as an option.
http://openaccess.eprints.org/index.php?/archives/
71-guid.html
http://www.eprints.org/news/features/request_button.php
(3) I do (strongly) advocate that all authors should both
deposit
and set access as Open Access immediately, but I am not
particularly calling that formally "Fair Use," in
the narrow
legal sense. I would call it "Sensible Use," in
the rational
sense.
(4) I also much prefer a stronger mandate rather than ID/OA:
The
best mandate is Immediate-Deposit/Immediate-Access. But, as
noted, time should not be wasted (as it is being wasted)
trying
to get this stronger mandate adopted, when the ID/OA mandate
will
do. ID/OA is also far preferable to a Delayed Deposit
mandate, in
which it is not just the OA-setting that is embargoed, but
the
depositing itself. That is the worst "mandate" of
all, and it is
foolish in the extreme to adopt it rather than ID/OA.
http://www.eprints.org/news/features/request_button.php
Some replies to Sandy:
On Fri, 15 Jun 2007 sgt3 psu.edu wrote:
> The thrust of my comments was not directed at your
model,
> Stevan, but at what broad interpretations of "fair
use" as
> equating with "educational use" encourage
faculty to believe.
> If they further believe that they retain all "fair
use"
> privileges after transferring all rights to a
publisher, and
> many of their colleagues join them in this belief and
establish
> a "best practice" of posting postprints to
their personal web
> sites or local IRs, under 504(c)(2)
I hope it is clear now that although I most definitely do
think
that that (Immediate Deposit, Immediate Access) is the best
and
most sensible thing to do ("best practice"), and I
wish all
researchers were doing it of their own accord, without the
need
for a mandate, that is *not* what I was calling "Fair
Use"
(indeed it has nothing to do with the "Fair Use
Button," which
would be superfluous if all deposits were immediately made
OA.)
> their "reasonable" belief that this is a
correct practice under
> fair use will insure them against liability for
infringement
> should a publisher decide to bring suit, thus
discouraging
> legal challenges to the practice.
That's music to my ears. And if article authors had been
doing
that since 1994, as (subversively) proposed, we would
already
long have arrived at the optimal and inevitable outcome
(100% OA)
by now. But most authors are not yet doing that, hence we
need
the mandates.
http://www.arl.org/sc/subversive/i-over
ture-the-subversive-proposal.shtml
> The likely result, I allege, of such a scenario is
undermining
> a useful subscription-based service like Project Muse,
which in
> turn can lead to the demise of many humanities
journals, which
> is not the outcome desired by these authors but will be
the
> "unintended consequence" of their exercise of
"fair use."
No, the outcome of 100% Green OA self-archiving would not be
the
demise of journals; if/when it made subscriptions
unsustainable,
it would merely cause a conversion to Gold OA publishing.
http://www.publications.parl
iament.uk/pa/cm200304/cmselect/cmsctech/399/399we152.htm
> Your own model, restricted as I understand it to
individual
> transactions between author and colleagues interested
in the
> author's research, I do not perceive to be a direct
threat to
> the survival of journals as it seems unlikely to lead
to the
> displacement of subscriptions by libraries and is more
an
> extension of the traditional practice of sending
offprints or
> photocopies to a limited number of colleagues in direct
contact
> with the author.
The Fair Use Button is not a model. It is merely a way of
meeting
research usage needs during any embargo period in which
access to
the deposited article is set as Closed Access instead of
Open
Access.
> But I still wouldn't call it "fair use"
because permission is
> explicitly invoked in this process.
Sending individual reprints to individual requesters for
research
purposes has already established "best practice"
status
("ensuring against liability," to use your words)
for a half
century now.
Best wishes,
Stevan Harnad
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