May I confirm and endorse Marc Couture's very valid comments. The
Australian Copyright Act as amended up to date says as follows. Note
in particular clause (1) and clause (3). It really could not be much
more clearly stated! [My comments are in red and in square brackets.]
Indeed the Australian Act does not allow the copyright owner to
object to fair dealing of a journal article on the grounds that it
might affect the potential market. The Request-a-copy button rests on
firm legal ground in the Antipodes.
Arthur Sale
University of Tasmania
COPYRIGHT ACT 1968 - SECT 40
Fair dealing for purpose of research or study
(1) A fair dealing with a literary, dramatic, musical
or artistic work, or with an adaptation of a literary, dramatic or
musical work, for the purpose of research or study does not
constitute an infringement of the copyright in the work.
[ahjs: 1A and 1B omitted, not relevant, deal with lecture notes.]
(2) For the purposes of this Act, the matters to which
regard shall be had, in determining whether a dealing with a
literary, dramatic, musical or artistic work or with an adaptation of
a literary, dramatic or musical work, being a dealing by way of
reproducing the whole or a part of the work or adaptation,
constitutes a fair dealing with the work or adaptation for the
purpose of research or study include:
(a) the purpose and character of the dealing;
(b) the nature of the work or adaptation;
(c) the possibility of obtaining the work or
adaptation within a reasonable time at an ordinary commercial price;
(d) the effect of the dealing upon the
potential market for, or value of, the work or adaptation; and
(e) in a case where part only of the work or
adaptation is reproduced--the amount and substantiality of the part
copied taken in relation to the whole work or adaptation.
(3) Despite subsection (2), a reproduction, for the
purpose of research or study, of all or part of a literary, dramatic
or musical work, or of an adaptation of such a work, contained in an
article in a periodical publication is taken to be a fair dealing
with the work or adaptation for the purpose of research or study.
(4) Subsection (3) does not apply if another article in
the publication is also reproduced for the purpose of different
research or a different course of study.
(5) Despite subsection (2), a reproduction, for the
purpose of research or study, of not more than a reasonable portion
of a work or adaptation that is described in an item of the table and
is not contained in an article in a periodical publication is taken
to be a fair dealing with the work or adaptation for the purpose of
research or study. For this purpose, reasonable portion means the
amount described in the item. [ahjs: this applies to non-article
works, for example books. The section goes on to describe reasonable
portion.]
[Sections 41-44F go on to describe other acts not constituting
copyright infringement, such as reproduction for reporting, satire,
etc.]
From: American Scientist Open Access Forum
[mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG]
On Behalf Of Couture Marc
Sent: Saturday, 1 August 2009 5:22 AM
To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] "Authors Re-using
Their Own Work"
On Mon, Jul 27, 2009 at 7:19 AM,
C.Oppenheim_at_lboro.ac.uk<C.Oppenheim_at_lboro.ac.uk> wrote:
>
> CO: The query referred to cases where the author has ASSIGNED
> copyright to Sage. Sage then owns the copyright and is perfectly
> entitled to say what can be done with the article. Crucially, if
> something is not mentioned as permitted, it is forbidden. So if you
> have assigned copyright to Sage, you cannot do anything other than
> those things listed as permitted by Sage.
>
One should stress that no copyright owner can prevent a user doing
something that is allowed under one of the so-called exceptions which
are part of copyright laws, like fair use (in US) and fair dealing
(in Canada, UK and Australia).
For instance, US Copyright law (§107) states :
[...] the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright.
In the all the jurisdictions I mentioned, the exceptions allow for
distribution of copies (and note that "copy" is in no way restricted
to "print copy") on an individual basis for research purposes, as
embodied in the traditional practice referred to by Harnad or, more
recently, in the "request button",
It is true that some criteria must be met for such a use to be
considered fair, most notably the effect of the use upon the market.
But should a case concerning the "fairness" of the request button be
brought before a court, the publisher would have to demonstrate that
this particular act has indeed significantly reduced its earnings. If
it was the case, it would mean that the scenario of green OA
endangering journals has become a reality, something that may happen
in the future as Harnad (among others) dutifully points out.
In the meantime, authors should not hesitate to send copies to those
who are interested in (and don't have access to) their closed-access
(embargoed or otherwise) scholarly articles: after all, one can
hardly imagine other uses than research for these specialized works.
I will conclude that there are other instances where copyright owners
have tried to restrict the uses more than what these exceptions
allow. In fact, much of the debate about the anti-copying measures
that are part of Digital Rights Management (DRM) has focussed upon
the fact that such measures, which were meant to restrict unlawful
acts, will also restrict lawful ones. So we must remain alert (and
somewhat sceptical) when trying to decipher what uses a publisher
allow (or forbid).
Marc Couture
Télé-université (Université du Québec à Montréal)
mcouture_at_teluq.uqam.ca
http://www.teluq.uqam.ca/spersonnel/mcouture/home.htm
De : American Scientist Open Access Forum
[mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG]
De la part de Stevan Harnad
Envoyé : 27 juillet 2009 07:02
À : AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
Objet : "Authors Re-using Their Own Work"
On 27-Jul-09, at 5:39 AM, [identity deleted] wrote:
Hello Stevan,
Could I ask you to have a quick look at SAGE's terms for "Authors
Re-using Their Own Work"? It seems to me that it forbids the "email
eprint request" button:
http://www.sagepub.com/repository/binaries/journals/permissions/author_use.d
oc
(The link is from this page:
http://www.sagepub.com/journalsPermissions.nav )
It says you can distribute photocopies of the published article to
your colleagues on an individual basis, but not electronic versions.
On my reading, there's a 12-month embargo on circulating electronic
copies of the refereed version of the article in any way. Wouldn't
this prohibit the "email eprint request"
button?
http://openaccess.eprints.org/index.php?/archives/274-guid.html
(1) The SAGE "author-re-use"document says "You can distribute photocopies." It does not say "You cannot
distribute electronic versions." It simply does not
say "You can distribute electronic versions."
(2) There are many other things the SAGE "author-re-use"
document does not say you can do with your own work, including that
you can distribute corrected versions, laminated versions, or
versions in Gothic script.
(3) And in saying things that you can and cannot do with your own
work, the SAGE "author-re-use" document is not restricting itself to
the things a publisher can and cannot tell you that you can and
cannot do with your own work. For example, publisher "permissions"
regarding what you can and cannot do with your pre-submission
preprint prior to acceptance of the refereed postprint are rather
far-fetched (e.g., making corrections in it).
(4) But the short answer to your query is this: No, there is nothing
either defensible or enforceable that a publisher can do or say to
prevent a researcher from personally distributing individual copies
of his own research findings to individual researchers, for research
purposes, in any form he wishes, analog or digital, at any time. That
is what researchers have been doing for many decades, whether or not
their right to do so was formally enshrined in a
publisher's "author-re-use" document.
SAGE is a ROMEO pale-green
publisher:
http://romeo.eprints.org/publishers/65.html
That means they endorse authors making their pre-refereeing preprints
Open Access immediately (and they endorse making authors' refereed
postprints Open Access after a one-year embargo). During the embargo,
SAGE authors (like any authors) are of course free to send an
individual copy (whether analog or digital) of their refereed
postprint to any individual user who requests an individual copy for
research purposes. Nor is SAGE or any publisher entitled to dictate
to the author how they may lick the stamp or stroke the key that will
mail or email the reprint or eprint to the requester.
If I may make one suggestion to researchers who are puzzling over
what they can and cannot do with their published research articles:
Please use common sense rather than falling into (or for) formalistic
fatuity.
Stevan Harnad
Received on Sat Aug 01 2009 - 11:13:25 BST