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

From: Charles Oppenheim <C.Oppenheim_at_LBORO.AC.UK>
Date: Fri, 10 Mar 2000 15:41:09 +0000

Alan Story wrote:
>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?

Depends which thing was copied. If it was X that was copied, then A sues.
If it was X1 that was copied, it is P who sues. the law has always been
clear that it is what was copied that decides. To give you an analogy -
imagine you and I both take a photo of Big Ben at the same time side by
side, and two photos result that are almost identical. Someone takes my
picture and illegally scans it in to a PC. I can sue; you cannot even
though what is scanned looks like it is from your picture.

>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.)

No, A only assigns C1 to P.
>
>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?

In general, once someone has assigned copyright (in this case in X1) then
(s)he has no further say in what happens to it. Analogy is - you sell your
house to someone. That person promptly paints your old house a disgusting
green colour. You cannot complain as you have no further rights in the
house.

>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.

X3 is derived from X1, and A has assigned copyright in X1 to P, so no
problem arises. Only P can sue.

In short, existing law happily caters with your scenario.

Professor Charles Oppenheim
Dept of Information Science
Loughborough University
Loughborough
Leics LE11 3TU

Tel 01509-223065
Fax 01509-223053
Received on Mon Jan 24 2000 - 19:17:43 GMT