Just want to point out that the Author's Guild lawsuit against Hathi Trust and five of its partner institutions is about access to orphan works, not reuse.  The failed Google Books Settlement has given some organizations a taste for making a profit by selling such access, IMO, and they are anxious to prevent any successful non-commercial method of providing access to orphans.  This is why the recent filing in the Hathi lawsuit insists that there is no fair use for libraries at all, to prevent libraries arguing fair use as a justification for access to orphan works.

I very much wish the world was as Sandy suggests, but I am afraid I see a much more contested landscape, even over basic access to works that are not subject to any commercial exploitation.

Kevin L. Smith
Duke University
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-----Original Message-----
From: LibLicense-L Discussion Forum [mailto:[log in to unmask]] On Behalf Of LIBLICENSE
Sent: Sunday, March 18, 2012 9:46 PM
To: [log in to unmask]
Subject: Re: Predatory OA Journals in CHE

From: Sandy Thatcher <[log in to unmask]>
Date: Fri, 16 Mar 2012 19:36:21 -0500

But is not the general problem that we identify under the rubric of "orphan works" mainly a matter of making commercial re-use of those works through derivative works, adaptations to other media, reprinting portions in anthologies, translations, and the like? After all, we can all make some use of "orphan works" under fair use, so it is not as though they are completely unusable. I don't believe  people have talked about the problem of orphan works as a matter of access, but rather re-use beyond fair use.

Sandy Thatcher



> From: Jean-Claude Guédon <[log in to unmask]>
> Date: Thu, 15 Mar 2012 21:43:30 -0400
>
> Personally, I prefer CC-by, but if someone chooses CC with a 
> non-commercial clause, the article does remain freely accessible and 
> usable, whatever happens to the author, and this is what concerns 
> researchers most. As for the fuzzy and troubling areas about the NC 
> (does publishing with advertising count as commercial use, for 
> example?), they can be a concern, but not for researchers so long as 
> the same article is in a regular depository run, for example, by a 
> library. At least, I cannot think of a situation where a researcher 
> wanting to read, use and cite research results would run afoul of a 
> CC-NC constraint. If we remember that scientific communication is 
> there to serve researchers first, and not publishers first (or at 
> all), such issues are of a second-order nature. In other words, in the 
> context of a first approximation, they can be neglected.
>
> Jean-Claude Guédon
> Professeur titulaire
> Littérature comparée
> Université de Montréal
>
>
>
> Le jeudi 15 mars 2012 à 20:07 -0400, LIBLICENSE a écrit :
>
> From: Sandy Thatcher <[log in to unmask]>
> Date: Wed, 14 Mar 2012 19:20:32 -0500
>
> There may be an "orphan" problem with OA articles whose authors retain 
> commercial rights and who become difficult to locate later on.  (Also, 
> if they are deceased, their heirs will have inherited such rights and 
> they may well be unaware that they even own such rights.) Indeed, the 
> problem will likely be greater than for traditional publishing, where 
> such rights are typically owned by the publisher, which (unless it 
> goes out of business) is easy to locate.
>
> Sandy Thatcher
>
>
>>  From: Jan Velterop <[log in to unmask]>
>>  Date: Tue, 13 Mar 2012 08:34:53 +0000
>>
>>  Though the nice thing about OA articles is that they can reside in
>>  many places at once, and so the chances of those articles getting 
>> lost
>>  are much lower than if and when a traditional journal or publisher
>>  disappears. Some traditional publishers have made 'living wills', 
>> but
>>  not all. And if they haven't, there may be a ©-orphan problem when
>>  they go under. No such problem with OA articles.
>>
>>  The fear of 'predatory' OA journals is a bit of a red herring. There
>>  are also 'predatory' traditional journals. The difference is the prey.
>>  For author-side paid OA journals it's the author; for subscription
>>  journals it's the library AND the author (who may find that his/her
>>  paper has a circulation of only a few hundred, or even less).
>>
>>  So for authors it always is 'caveat emptor', whether publishing in 
>> an
>>  OA journal or a subscription journal.
>>
>>  Jan Velterop
>>
>>  Drs Johannes (Jan) Velterop, CEO
>>  Academic Concept Knowledge Ltd. (AQnowledge)
>>  Skype: Villavelius
>>  Email: [log in to unmask]
>>  [log in to unmask]
>>  aqnowledge.com
>>
>>
>>  On 13 Mar 2012, at 08:06, LIBLICENSE wrote:
>>
>>  From: Wilhelmina Randtke <[log in to unmask]>
>>  Date: Mon, 12 Mar 2012 12:41:17 -0500
>>
>>  Yes, at the journal level the poor quality journals will die.  The
>>  tragedy will be the quality articles that go down with the poor
>>  journals, and are lost.  But that's been said before.
>>
>>  -Wilhelmina Randtke