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The Austrlain Act does indeed permit fair dealing for one's own research or
private study; but it doesn't permit copying for distribution to third
parties.
I am slightly alarmed that there is this misunderstanding about copyright
law. Fair dealing for research or private study is when you make a copy
for one's own research or private study. Thus, in law, if Dr Jones asks Dr
Smith for an electronic copy of Dr Smith's article, and Dr Smith gave away
the copyright to Megacorp Publishers, then Dr Smith should strictly not
supply that copy (unless the publisher has granted permission for do such
things) b3ecause the copy isn't then for Dr Smith's own research or private
study, but should advise Dr Jones to make his own fair dealing copy.
On Sat, 1 Aug 2009 14:43:45 +1000
Arthur Sale <ahjs_at_OZEMAIL.COM.AU> wrote:
> May I confirm and endorse Marc Coutures 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
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s195au.html#d
> ea
> ling_with> with a literary, dramatic, musical or
> artistic
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#art
> is
> tic_work> work, or with an adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> of a literary, dramatic or musical
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#mus
> ic
> al_work> work, for the purpose of research or study
> does not constitute an
> infringement of the copyright
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#copy
> >
> in the work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> .
>
> [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
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s195au.html#d
> ea
> ling_with> with a literary, dramatic, musical or
> artistic
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#art
> is
> tic_work> work or with an adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> of a literary, dramatic or musical
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#mus
> ic
> al_work> work, being a dealing
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#dea
> l>
> by way of reproducing the whole or a part of the work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> or adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> , constitutes a fair dealing
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s195au.html#d
> ea
> ling_with> with the work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> or adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> for the purpose of research or study include:
>
> (a) the purpose and character of
> the dealing
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#dea
> l>
> ;
>
> (b) the nature of the work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> or adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> ;
>
> (c) the possibility of obtaining
> the work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> or adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> within a reasonable time at an ordinary
> commercial price;
>
> (d) the effect of the dealing
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#dea
> l>
> upon the potential market for, or value of, the work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> or adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> ; and
>
> (e) in a case where part only of
> the work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> or adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> is reproduced--the amount and substantiality of
> the part copied taken
> in relation to the whole work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> or adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> .
>
> (3) Despite subsection (2), a reproduction,
> for the purpose of
> research or study, of all or part of a literary,
> dramatic or musical
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#mus
> ic
> al_work> work, or of an adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> of such a work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> , contained in an article
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115.html#art
> ic
> le> in a periodical publication is taken to be a fair
> dealing
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s195au.html#d
> ea
> ling_with> with the work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> or adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> for the purpose of research or study.
>
> (4) Subsection (3) does not apply if
> another article
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115.html#art
> ic
> le> 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
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> or adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> that is described in an item of the table and is
> not contained in an
> article
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115.html#art
> ic
> le> in a periodical publication is taken to be a fair
> dealing
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s195au.html#d
> ea
> ling_with> with the work
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s189.html#wor
> k>
> or adaptation
> <http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html#adap
> ta
> tion> 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,
>
> <mailto:C.Oppenheim_at_lboro.ac.uk%3cC.Oppenheim_at_lboro.ac.uk>
> 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 ? Montréal)
>
> mcouture_at_teluq.uqam.ca
> http://www.teluq.uqam.ca/spersonnel/mcouture/home.htm
> <http://www.teluq.uqam.ca/spersonnel/mcouture>
>
>
>
>
>
>
>
>
>
> 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_us
> e.
> doc>
> http://www.sagepub.com/repository/binaries/journals/permissions/author_use
> .d
> oc
>
> (The link is from this page:
> <http://www.sagepub.com/journalsPermissions.nav>
> 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>
> 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>
> 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 - 18:54:02 BST