Peters S nd MR on NPG and fair-use

Recently Nature Publishing Group released a policy allowing users to test- and data-mine some of their content (specifically that which was in some way Open Access). This policy was negotiated with the Wellcome Trust who applauded it. Peter Suber attached some words of approbation. In contrast I feel it's s serious step backwards. I have set the scene in the previous article by addressing free, gratis and fair-use.

The first question, which no-one seems to have addressed, is why do we need permission at all. I believe that we actually have a right to mine both text and data without permission. I'm noT reproducing significant amounts of the original work in its original form so I don't believe I'm actually infringing fair-use. I invite any publisher to explain why content created by the community cannot be mined by machine in ways that have been done for centuries by hand.

If, however, the community agrees that we need specific permission to do mining then (to me at least) it is logical that it is a greater libre-dom than fair-use. If, after all, it is simply fair-use then the publisher should say so. And remember that fair-use applies to all the publisher content, not just the OA stuff. (Note, however, that librarians and other purchasing officers normally sign publisher contracts which are more restrictive and limit subscribers use to less than fair-use. That affects the closed access articles that I have access to in my institution).

So what really worried me was that Wellcome Trust (for whom I have a high regard) seem have impicitly agreed that NPG's free-doms for mining need special negotiated permissions. Whereas I regard them as fair-use. So, the agreement, formally limits fair-use to less than I thought we had. When it comes to other publishers and pay for authorFunder-pays articles then funders may be paying large amounts for what was our right anyway.

That's why the precise interpretation really matters. And where I finally get round to PeterS's comments:

Peter Suber says:

June 21, 2009 at 3:30 pm  (Edit)

Hi Peter. There are several threads here that Id like to separate.

Weak/strong was an early, regrettable proposal for the distinction now captured by gratis/libre. Dont think of it an additional pair of terms but as a superseded or deprecated pair of terms.

PMR: agreed and I am very glad to see the new pair.

When I introduced the terms gratis/libre into the OA context (borrowing them from the FOSS context), I tried to be clear, careful, and detailed about what I meant by them. I dont legislate usage, of course. But if the question is about how I use the terms, then my original article should answer it. I also think that my article will answer your questions about what the terms mean in practice, or how they can make our discussions less confusing rather than more confusing.

PMR: Yes. Peter writes a great deal of extremely clear explanations. For him libre represents the granting of at least one freedom. (For me it represents all in BBB but I'll go with Peter here).

I dont know whether the new NPG policy goes beyond fair use either. This depends on whether fair use already covers text-mining, a question on which informed people continue to disagree. We may not know whether fair use allows the downloading of full-text copies for processing, but at least we now know that NPG does allow it.

PMR: This is the central issue. But if it is fair-use, then let's recognise it as such and announce it as a clarification, not new added value.

Whether the NPG policy is libre OA in my sense depends on whether it exceeds fair use, and Im admitting that thats unclear. If the policy exceeds fair use, then its libre OA (barely). If it doesnt exceed fair use, then it isnt.

PMR: we agree on the central issue

Remember that libre OA is not a synonym for BBB OA. Libre OA covers all the different ways of exceeding fair use or removing permission barriers. It covers a *range* of positions, not just one position. If the NPG policy is libre at all, its at the lower or minimal end of the range; the BBB OA is a position at the higher or maximal end of the range.

PMR: we agree completely. I personally find it difficult to write libre-OA as meaning other than BBB-OA (as it gives an air of legitimzation) but I am happy to write enhanced-permission-OA or some-libre-dom-OA

5. I agree with everything you say about the limitations built into the NPG policy. Removing many more permission barriers would greatly facilitate text-mining and (Im convinced) cause no harm to NPG.

PMR: one of the worst aspects is that this is a complete waste of my time and yours. I should have been writing unit tests to manage chemistry today and I've been sidetracked onto this. I don't mind day-after-day trying to fight nature when trying to crystallise a glue, or distill an oil or whatever. But it incredibly dispiriting day-after-day trying to win back what is ours by right and with which we could actually do science.

But you inspire me so I shall struggle on.

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