Re: Legal ways around copyright for one's own giveaway texts

From: Alan Story <a.c.story_at_UKC.AC.UK>
Date: Fri, 10 Mar 2000 13:28:56 +0000

I have just joined this list and perhaps may not understand
all of the details of the "self-archiving" proposal.

Responding to Charles Oppenheim's 22 Feb. message, let me
put forward the following hypothetical (assuming the
provisions of the Copyright, Designs and Patents Act
1988) to see if I understand it....

1. On March 10 2000 at 3:00 p.m., an academic (A)completes
article (X) on "Why Ken Livingstone Should be Mayor of
London."

2. At 3:10 p.m. (A) posts (X) on her/his personal web
archives.

As soon as this is done, (A) will have copyright (C) in (X)
as is meets copyright requirements (e.g. originality, work,
fixation in tangible form, available to public, etc.) which
subsists until death of the (A)+70 years. (A) can
allow anyone to use X (e.g. for non-profit educuational
purposes).

3. At 3:15 p.m. on 10 March (A) posts (X) to
publisher(P)...who passes it on to a referee.

4. On the basis of the referees comments, A edits X...which
nows become X1. (though, see below, the
differences between X and X1 may not matter for copyright
infringement purposes....)

5. (B) requires that (A) assigns all copyright,
re-publication, digitalization rights in X1 to (B). (A)
agrees and signs the publisher's standard form contract.
The copyright (C1)(and all other rights) in X1 are owned by
(P).

6. On 30 March (assume a very speedy (R),(A) and (P)....),
(P) simultaneously publishes X1 in its hard-copy
journal and its digital journal.

7. On 1 April, nasty (I) allegedly infringes copyright in
the article by photocopying a substantial part for use in a
student course pack (ie. no permission sought, no fee
paid, no attribution etc.) Unless X and X1 are very
dramatically different, we can assume that the alleged
infringement by (I)would be in relation to both X and X1.

Which then raises the following questions....

1) In the above scenario, what happens to (A)'s copyright
(C)in X? That is, would A have a cause of action against
(I)? Or would only (P)? Or would both of them?

2)In the proposed scheme, does (A) also assign (C) to (P)?
(which, unless there were additional contractual clauses
---- as in the American Physical Society form--- would mean
that (A)no longer has any rights over X.)

3) If (A) does NOT assign C to (P)and then (P) does
something with X1 that (A) doesn't like ( e.g.
allows a crummy journal (CJ) to publish another version
(now X3) without attribution to (A),) does (A) have a cause
of action against (P) and (CJ)for copyright infringement?
That is, although (CJ) has used X1 to publish X3, X3 may
also likely infringes X...which would give (A) a cause of
action against (CJ) as the primary infringer and against
(P) as the secondary infringer.

There are other questions, but let's leave it at that for
now.

Perhaps, of course, I have missed something along the
line.

And, to be clear, I am a friendly critic and do want to
work towards tearing down the the current copyright
user-pay tollgates.

Regards
Alan Story
 ----------------------
Alan Story
Kent Law School
Eliot College
University of Kent
Canterbury Kent UK
CT2 7NS
a.c.story_at_ukc.ac.uk
Ph. 01227 823316
Fax 01227 827831
Received on Mon Jan 24 2000 - 19:17:43 GMT