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 16:59:45 +0000

Perhaps I don't know who the moderator of Sept.98 is. It
was the comment I got from a person named "Marvin" that I
did not find collegial.

Cheers
Alan Story
On Fri, 10 Mar 2000 15:41:09 +0000 Charles Oppenheim
<C.Oppenheim_at_lboro.ac.uk> wrote:

> 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
>
>

----------------------
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