Arthur
You seem to be using an out-of-date copy of the UK Act. The text you
quote is the original 1988 version. Important changes were made in
2003. It has some implications for what you say, obviously in
discussing legal issues it's best to use an up-to-date version of the
legal provisions being discussed.
Also, the literal wording of any Act is only one step in this
process. All of these defences are subject to interpretations by the
courts and as the Act makes clear, any dealing with another's
copyright work is subject to a test of "fairness" as applied by the
courts. Therefore, it is incomplete to consider these issues divorced
from the context of whether of not each dealing is fair.
I agree with much of what Charles has said on this matter.
Laurence
Laurence Bebbington
Faculty Team Leader (Social Sciences, Law and Education)
Information Services
The University of Nottingham
____________________________________________________________________________
From: American Scientist Open Access Forum on behalf of Arthur Sale
Sent: Tue 04/08/2009 03:30
To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
Subject: Re: "Authors Re-using Their Own Work"
Charles
You miss the point. As the copy leaves my Australian hands, it is not
an infringing copy. It falls under an exemption and is perfectly
legal. From there you get into the murkier water of trans-border
'law'. However, it seems extraordinarily likely that if I send to
someone in the UK or EU a perfectly legal copy that they have a
perfect right to accept it in the absence of any specific customs or
ownership legislation to the contrary, for example as occurs with the
receipt of banned drugs mailed from abroad. No such UK or EU or
German law exists in respect of the holding of copyright works as far
as I know.
Australian law simply recognises clearly what the issue is and how to
resolve it. It is not in any way unique. I recognise that the law in
some other countries is sometimes behind the times. However, you
prompted me to look at UK Copyright Law. Here are sections 28 and 29.
Chapter III Acts Permitted in relation to Copyright Works
Introductory
28 Introductory provisions
(1) The provisions of this Chapter specify acts which may be done in
relation to copyright works notwithstanding the subsistence of
copyright; they relate only to the question of infringement of
copyright and do not affect any other right or obligation restricting
the doing of any of the specified acts.
(2) Where it is provided by this Chapter that an act does not
infringe copyright, or may be done without infringing copyright, and
no particular description of copyright work is mentioned, the act in
question does not infringe the copyright in a work of any
description.
(3) No inference shall be drawn from the description of any act which
may by virtue of this Chapter be done without infringing copyright as
to the scope of the acts restricted by the copyright in any
description of work.
(4) The provisions of this Chapter are to be construed independently
of each other, so that the fact that an act does not fall within one
provision does not mean that it is not covered by another provision.
General
29 Research and private study
(1) Fair dealing with a literary, dramatic, musical or artistic work
for the purposes of research or private study does not infringe any
copyright in the work or, in the case of a published edition, in the
typographical arrangement.
(2) Fair dealing with the typographical arrangement of a published
edition for the purposes mentioned in subsection (1) does not
infringe any copyright in the arrangement.
(3) Copying by a person other than the researcher or student himself
is not fair dealing if-
(a) in the case of a librarian, or a person acting on behalf of a
librarian, he does anything which regulations under section 40 would
not permit to be done under section 38 or 39 (articles or parts of
published works: restriction on multiple copies of same material), or
(b) in any other case, the person doing the copying knows or has
reason to believe that it will result in copies of substantially the
same material being provided to more than one person at substantially
the same time and for substantially the same purpose.
While I am not an expert in UK copyright law, it seems to me that:
· Clauses 28(1) and (2) are the exemption clauses.
· Research copying is not restricted to the person doing the
copying. Indeed the wording makes a distinction between `research'
and `private study' (Clause 29(1)). It does not even say `private
research'. All the `private study' does actually is to prohibit
copying for classes.
· Clause 29(3) is slightly ambiguous as it is not completely
clear who the `researcher' is: producer or consumer. However,
assuming consumer - the most restrictive case and the most probable
interpretation - the law simply requires the producing researcher to
be convinced that he is doing copying for a single consumer
researcher and that it will not be disseminated further. The clause
actually explicitly assumes third parties (librarians) might be
involved.
UK Law does not seem to be as prehistoric as you make out. I think
there are old misunderstandings being rehearsed here. Fair dealing
(in particular copying to facilitate research) was and remains legal
as well as common practice, especially in the homeland of scientific
journal.
Arthur
-----Original Message-----
From: American Scientist Open Access Forum
[mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG]
On Behalf Of C.Oppenheim
Sent: Monday, 3 August 2009 5:21 PM
To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] "Authors Re-using
Their Own Work"
I now understand why Arthur and I disagree. He is referring to
Australian
Copyright Law, and I am referring to UK law.
I am happy to accept that Arthur's approach is accurate in Australian
law.
unfortunately in UK, and most of EU law, it isn't. In these
countries,
there is a clear distinction between the right of reproduction and
the
communication right and the law treats them differently. Thus, in
the UK,
it is legal for anyone to copy a work for themselves under fair
dealing, but
fair dealing does not apply to the communication right (i.e.,
providing
things electronically to third parties).
Thus, unfortunately, whilst Arthur may well be able to do what he
suggests
within Australia (and no doubt some other countries as well), what he
cannot
do is send such materials to the EU as the recipient would be
breaking the
law by importing an infringing copy. Arthur and others may well of
course
argue that this is such a trivial illegality that the risk can gbe
taken,
and I'd agree. But there's a world of difference between saying
"it's
illegal, but the risk is trivial" and saying "it's absolutely legal".
I am sure readers of the forum are by now totally bored by this topic
so I
don't intend to say anything more on it, other to remind them that
there are
numerous solutions to the problem anyway: to send a requestor an
earlier
version of the work before copyright was assigned; to assign
copyright but
make sure the publisher gives permission for you to send stuff
electronically to requestors; or not to assign copyright at all to
the
publisher.
Charles
On Sun, 2 Aug 2009 11:15:16 +1000
Arthur Sale <ahjs_at_OZEMAIL.COM.AU> wrote:
> Charles
>
> The Australian Act makes no mention of who does the
>reproduction. Whether I make a reproduction/copy (say
>electronic by email, or photocopy my manuscript or the
>journal, or some other form of copy) of my article to
>give to my PhD student, or he/she does it personally from
>a CD I lend or a journal issue they borrow, makes no
>difference. I can even ask an administrative assistant to
>make the copy for me and deliver it. What matters is that
>the copy is for the purpose of research or study. Exactly
>the same applies to a remote researcher who asks me for a
>copy of my article.
>
> I left out sections 1A and 1B of Section 40 but they
>(amongst other things) even make provision for
>reproductions of journal articles to be provided to
>[multiple] off-campus students engaged in a course of
>study.
>
> The Australian Act simply recognises that research
>thrives on dissemination. I might add that it is equally
>sensible in other areas, such as photography of copyright
>works located permanently or temporarily in public
>places.
>
> But Stevan is right. The law is not the issue. I merely
>pointed out that the Australian Act is more sensible than
>most in that it legitimises what is common practice, so
>common indeed as to be hardly worth remarking on except
>when people query it. The facts are that researchers have
>practised copying of research articles and sending copies
>to fellow researchers for a long time, and they continue
>to do so. My memory of this goes back to when I started
>work as an academic in 1961, 48 years ago. My publishers
>then even asked me how many reprints I wanted - not
>necessary these days.
>
> Arthur Sale
> University of Tasmania
>
> -----Original Message-----
>From: American Scientist Open Access Forum
>[mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG]
>On Behalf Of C.Oppenheim
> Sent: Saturday, 1 August 2009 10:31 PM
> To:
>AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
> Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM]
>"Authors Re-using Their Own Work"
>
> 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.
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