Open Access News

Stevan Harnad, Green OA Moots Permission Barriers By Bypassing Price Barriers, Open Access Archivangelism, October 16, 2007.

This is Stevan's lengthy response to my response to his post of October 14.  Sorry for presupposing the earlier stages of this thread.  I'm posting only the most relevant parts of his new post, along with my new response.  But to be fair to his full argument, read his full post.  My new response is at the end.

In Open Access News, Peter Suber wrote (by way of reply to my posting):

PS: ..."Stevan isn't saying that OA doesn't or shouldn't remove permission barriers. He's saying that removing price barriers (making work accessible online free of charge) already does most or all of the work of removing permission barriers and therefore that no extra steps are needed."

So far this is exactly correct -- except I would definitely say that Green OA self-archiving removes not just "most" but all the "permission barriers" pertinent to research use, which is what OA is all about.... 

PS: "The chief problem with this view is the law. If a work is online without a special license or permission statement, then either it stands or appears to stand under an all-rights-reserved copyright. The only assured rights for users are those collected under fair use or fair dealing. These rights are far fewer and less adequate than OA contemplates, and in any case the boundaries of fair use and fair dealing are vague and contestable."

If "naked" (unlicensed) content on the web is really a barrier to use, how come we are not hearing about the need to license all web content (e.g. advertisements, blogs) because people are otherwise afraid to download, print, store and otherwise "re-use" them? (Answer: Because people are doing all those things, without hesitation.)
I think the truth is the exact opposite! That the default option, if something is freely accessible on the web, is that it's fine to do all those other things that come with it, and then some. (You can't even view web content without downloading and "storing" at least for long enough to read, yet that downloading and storing are not explicitly licensed!) ...

PS: "This legal problem leads to a practical problem: conscientious users will feel obliged to err on the side of asking permission and sometimes even paying permission fees (hurdles that OA is designed to remove) or to err on the side of non-use (further damaging research and scholarship). Either that, or conscientious users will feel pressure to become less conscientious. This may be happening, but it cannot be a strategy for a movement which claims that its central practices are lawful."

Paying permission fees for Green OA content? Paying whom?
I honestly cannot imagine who or what you have in mind here, Peter!...

I am not feigning puzzlement: I am truly baffled about why, when the reality is the exact opposite, OA advocates, of all people, would worry that web users might be too coy (or "conscientious") to do with OA texts exactly the same things that we all do with all other free web content -- and too coy or "conscientious" to do so specifically in the case OA texts, of all things, because they lack a formal license to do it (exactly as virtually all other web content lacks such a license!)....

I make absolutely no bones about the fact that the right to re-publish the verbatim text, online or on-paper, is not part of OA and never was....

PS: "This doesn't mean that articles in OA repositories without special licenses or permission statements may not be read or used. It means that users have access free of charge (a significant breakthrough) but are limited to fair use."

"Fair use" was a paper-based notion. In the case of the online medium, "fair use" quite naturally, indeed unavoidably, expands to include everything else that comes with the online territory. In the case of freely accessible web documents, that "fair use" simply includes downloadability, storeability, printability, and data-minability, for individuals; and, for harvesters: robotic harvestability, data-minability, and certain derivative services (though I would not venture to specify which, though they certainly include free boolean searchability). With the Green OA territory comes also the accessibility online to everyone everywhere, mooting forever all need for collections, course-packs, re-publications, or other such "derivative works," online or on paper. For individual "derivative works," some form of "fair use" criterion still has to apply to determine how much verbatim content is permissible without the original author's permission.

Comments

• I agree with Stevan that when people find "naked" or unlicensed content online, many use it without hesitation.  My point was not about behavior but about the law.  Copyright law does not permit all this reuse, even if it permits some of it. 
• "[I]f something is freely accessible on the web...it's fine to do all those other things [download, print, store and otherwise "re-use" them]...and then some."  This is incorrect.  Only fair use is permitted by default, and fair use has limits. 
• "Paying permission fees for Green OA content?"  I wasn't talking about paying for permission to use green OA content, but to use non-OA content.  I was talking about a hurdle that OA removes, not a hurdle that OA leaves in place.
• "I am truly baffled about why, when the reality is the exact opposite, OA advocates, of all people, would worry that web users might be too coy (or "conscientious") to do with OA texts exactly the same things that we all do with all other free web content."  When I talked about "conscientious" users, I meant those who want to respect the limits on fair use and avoid copyright infringement.  Again, Stevan is right that many or perhaps even most users are not conscientious in this sense.  But the rise of OA does not depend on the decline of conscientiousness.  It depends on copyright holder consent to uses beyond fair use --that is, the removal of permission barriers.  We could dispense with this step if we ever amended copyright law to expand the scope of fair use.  But we needn't wait that long and we cannot proceed on the incorrect assumption that fair use is already that expansive.
• "I make absolutely no bones about the fact that the right to re-publish the verbatim text, online or on-paper, is not part of OA and never was...." The three major public definitions of OA all make copying and redistribution part of OA.  The Budapest definition says:  "By 'open access' to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles...."  The Bethesda and Berlin definitions both ask the copyright holder to permit users "to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works...."
• "'Fair use' was a paper-based notion. In the case of the online medium, 'fair use' quite naturally, indeed unavoidably, expands to include everything else that comes with the online territory."  This is incorrect.  Fair use may expand for online media, but it still has limits, and these limits are decided by courts, not by users.  New technologies may make new law desirable, but they don't make new law on their own --any more than (in Jeremy Bentham's phrase) hunger is bread.

Update.  For the dialogue between Stevan and Peter Murray-Rust on the same questions, see this (including the comments) and this.