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I hope I am not included by Keith as amongst those who use copyright
debates to restrict OA. I have consistently urged authors NOT to assign
copyright to publishers so that they are indeed free to self-archive.
If authors are foolish enough to assign copyrigh to OA unfriendly
publishers, they only have themselves to blame if the law then puts barriers
to self-archiving in their way. But there is no point in pretending there
isn't a legal barrier under such circumstances.
Charles
On Tue, 4 Aug 2009 12:00:05 +0100
"Jeffery, KG (Keith)" <keith.jeffery_at_STFC.AC.UK> wrote:
> Stevan -
> many thanks for a succinct summary. However, while I
> agree it has
> nothing to do strictly with green OA, the subject of
> copyright has been
> used by some disingenuously to try to dissuade authors
> from
> self-archiving of peer-reviewed material as you well
> know. Debunking
> the myth could prove useful to achieving greater than
> 15%
> self-archiving.
> best
> Keith
>
>
> ----------------------------------------------------------
> Prof Keith G Jeffery E: keith.jeffery_at_stfc.ac.uk
> <mailto:kgj_at_rl.ac.uk>
>
> Director Information Technology & International Strategy
> Science and Technology Facilities Council
> Rutherford Appleton Laboratory
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>
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>
>
> ________________________________
>
> From: American Scientist Open Access Forum
> [mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG]
> On
> Behalf Of Stevan Harnad
> Sent: 04 August 2009 11:45
> To:
> AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
> Subject: Research: Writ, Reason, and Practice
>
>
> 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.
>
>
>
>
>
> --
> Scanned by iCritical.
>
Received on Wed Aug 05 2009 - 10:40:58 BST