Open Access Archivangelism

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SUMMARY: Authors are entitled, under "Fair Use," to distribute single copies of their journal articles to individual reprint- or eprint-requesters for research use. But misunderstandings are making funders and institutions uncertain about whether to adopt (1) the Immediate-Deposit/Optional-Access (ID/OA) Mandate or (2) the equivocal "Delayed Deposit Mandate" (which would leave it up to publishers whether and when authors deposit -- rather than just when they make the deposit OA).
   Mandating immediate deposit (ID/OA) -- with the deposit either made Open Access immediately, where feasible, or Closed Access while there is a publisher embargo period (ID/OA) -- is infinitely preferable to allowing the deposit itself -- rather than just the access to the deposit -- to be embargoed. During any access embargo, the deposit's metadata are still visible webwide (author, title, date, journal, etc.), so users can request a single fair-use copy. The "Fair Use" Button is part of the Institutional Repository's interface. Whenever a user reaches a Closed Access deposit, they can cut/paste their email address into a box, and click on the 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.
   The default version that should be mandated for deposit is the author's final draft, not the publisher's PDF. (Many more publishers endorse author self-archiving of the publisher's final draft with immediate, unembargoed setting of access to the deposit of that draft as OA rather than Closed Access.) The difference between the publisher's PDF and the author's final draft means next to nothing for those would-be users who currently have no access at all.

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Bernard Rentier, Rector, U Liege, wrote:

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. -- B.R.

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 reprint 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.

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Charles Oppenheim, Head, Department of Information Science Loughborough University, 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.

(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.) -- C.O.

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.

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Laurence Bebbington [LB], Law Librarian, Information Services Copyright Officer, University of Nottingham, wrote:

As far as UK law is concerned I think this statement is only partly true. For example, under UK law only the copyright owner can authorise reproduction/copying if the copying is for commercial purposes.

The Fair Use Button is for an individual researcher's individual research papers, as the form-request should clearly state.

LB: - under UK law copying by anyone other than the copyright owner under the 1988 Act must generally be for research or private study, for non-commercial purposes.

As above.

LB:- where distribution of "reprints" is by some digital format then only the owner of copyright in the reprint (who may not be the author) can authorise the copying and distribution IF it is for commercial purposes.

As above.

LB:This would, I think, prevent an author who has assigned copyright from making or authorising the copying and sending of an item to someone IF the intended use is for commercial purposes (e.g. an author, who is not the copyright owner, could not send the published version to someone working in a pharmaceutical company's research laboratory). However, arcane this may seem, it is (in my view) the legal position.

It is indeed arcane and seems to have nothing to do with the topic at hand (and the rationale for Open Access), which is individual research use for research purposes.

LB: Charles, I believe, is referring to section 29(3) of the Copyright Designs and Patents Act 1988. That section permits one person to copy something on behalf on someone else in certain circumstances - and as long as it is for research or private study for non-commercial purposes.

The only Fair Use Button directs the request to the author, who is the only one who can authorize the sending.

It is my impression that rights expertise is so focussed on the formal that it has lost sight of the functional: OA has nothing to do with commercial rights, either formally or functionally. It is about researcher use of research for research. That's the whole point. And that's why peer-reviewed research publication never belonged under the trade publication banner, with its many unwanted (for the researcher-author) "protections." In the Gutenberg era, the protections were reluctantly accepted by the researcher-author, who sought only impact, and never income, because the income was nonetheless needed by the paper publisher in order to cover true paper production and distribution costs. Otherwise there could be no publication (hence no impact) at all.

But in the PostGutenberg era the web makes it possible for the the researcher-author to supplement paper distribution with online distribution (self-archiving). (It also makes it possible to reduce all publication costs to just the costs of managing peer review, but that is not the issue here.) The Fair Use Button is for the authors of those articles that are publishing in that 38% of journals that still attempt to resist this obvious benefit for research and researchers made possible by the online medium. Instead of making the self-archived text immediately free for all upon acceptance for publication lie the authors in the 62% of journals that are Green, the remaining authors can use the Free Use Button until online access embargoes die their inevitable natural death. The Button makes it possible for research to improve all of our lives without having to wait.

Harnad, Stevan (2001/2003) For Whom the Gate Tolls?
Published as:
   (2003) Open Access to Peer-Reviewed Research Through Author/Institution Self-Archiving: Maximizing Research Impact by Maximizing Online Access. In: Law, Derek & Judith Andrews, Eds. Digital Libraries: Policy Planning and Practice. Ashgate Publishing 2003.
Shorter version:
   (2003) Journal of Postgraduate Medicine 49: 337-342.
French version:
   (2003) Ciélographie et ciélolexie: Anomalie post-gutenbergienne et comment la résoudre. In: Origgi, G. & Arikha, N. (eds) Le texte à l'heure de l'Internet. Bibliotheque Centre Pompidou. Pp. 77-103.

LB: Where authors own the copyright or are using a version other than the publisher's final one then they can authorise what they want through any button and whatever the button is called.

QED

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Rick Anderson, University of Nevada Libraries, wrote:

like many legal rights, fair use rights most certainly can be waived as a matter of contractual agreement. If you sign a contract that says you will not redistribute even single copies of the work in question, then you'll be legally bound to abide by it. (It would be silly to agree to such a term, but that doesn't make it legally unconscionable.)

I expect that one can waive one's right to breath air too, if one is silly enough to agree to do so, but that, too, is not the point under discussion here...

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Martin J. Osborne, Economics, University of Ontario wrote:

Regarding "fair use": is it your understanding that an author can email the publisher's pdf file of a published paper to a person who asks for a copy? (I looked through the list archives, but didn't see an answer.) My assumption is that she can, given that it is just the electronic analogue of mailing out a xerox of a published paper.

Yes, for simply emailing eprints, it makes no difference whether the author emails a copy of the publisher's PDF or the author's accepted final draft (postprint).

It also makes no difference which version is sent via the Institutional Repository's "Fair Use" Button, in the case of articles that have been deposited as Closed Access instead of OA because of publisher access embargoes.

But where it makes a huge difference is in institutional and funder self-archiving (Green OA) mandates. The default version that should be mandated for deposit is the author's final draft, not the publisher's PDF. The reason is that the author's final draft has far fewer restrictions imposed on it. (In other words, far more publishers endorse author self-archiving of the publisher's final draft, and far more publishers endorse immediate, unembargoed setting of access to the deposit of that draft as OA rather than Closed Access.)

So, if the publisher does happen to formally endorse immediate, unembargoed self-archiving of the publisher's proprietary PDF, it's fine to self-archive that. But the default version that mandates should specify for all other cases is the publisher's final draft.

By the way, the difference between the publisher's PDF and the author's final draft means next to nothing for those would-be users who currently have no access at all. Hence it would be absurd to keep on depriving them of access in order to hold out for a difference that makes no difference.

It would in principle be possible to deposit both the author's final draft and the publisher's PDF, the latter always in Closed Access, and, whenever a user requests an eprint via the Fair Use Button, always to send the PDF rather than the author's postprint. I would say that at a point in time when 85% of articles are not being deposited at all, any which way, and most institutions and funders have yet to adopt deposit mandates, this would be an example of a needless overcomplication, discouraging rather than accelerating progress. Both authors and their institutions and funders do best to forget about depositing the publisher's PDF at all, except in the specific cases where it has been endorsed by the publisher for immediate OA (and the author prefers to do so).

I not only prefer to deposit my final draft, but in addition to depositing it, I sometimes also deposit postpublication updates and corrections (clearly tagged as such!) of the published version, which would in any case supersede the PDF."

Optimizing OA Self-Archiving Mandates:
What? Where? When? Why? How?

"Stevan Harnad
American Scientist Open Access Forum