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To summarise:
Arthur is at pains to try to squeeze some reason out of (or into) an
incoherent formal writ that does not fit research writing and
practice and never has.
Charles is at pains to point out that researcher practice for a
half-century, though ubiquitous and uncontested, is not literally in
conformity with current formal writ, be it coherent or incoherent,
fitting or ill-fitting, so it might be a good idea to rewrite the
writ.
I say let those whose priority is to reformulate incoherent and
ill-fitting formal writs go ahead and pursue their priority. But
meanwhile, let researchers continue their ubiquitous and uncontested
practice: Full speed ahead.
Aside: This formal side-issue has next to nothing to do with Open
Access and Green Open Access Mandates.
http://bit.ly/S9u1H
Amen.
Stevan Harnad
On 4-Aug-09, at 2:53 AM, C.Oppenheim wrote:
Was ever thus, Arthur. If I make copies of a document in
a country with no
copyright laws at all, and attempt to bring them into
another country, I am
breaking the other country's copyright laws if they are
infringing under
that other country's rules. Every country with copyright
law has a clause
which says it is an offence to import copies that would
be infringing. If
such laws didn't exist, you'd get copyright havens with
little or no
copyright laws, from which people could export their
infringing copies
around the world. It's not murky at all - it is the basis
of international
copyright agreements! For the record, it's Clause 27(3)
of the UK Act.
You may find this all very frustrating; if you don't
like it, lobby to
change the law, but don't deny what the law says.
Charles
On Tue, 4 Aug 2009 12:30:58 +1000
Arthur Sale <ahjs_at_OZEMAIL.COM.AU> wrote:
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.
Received on Tue Aug 04 2009 - 13:05:58 BST