Keith
I suspect that most people would be keen to ensure that there is
"clarity on copyright law and practice..." Sadly, it's a very complex
area and clarity is not always its chief distinguishing characteristic.
However, as regards "research: writ, reason, and practice" perhaps it's
apposite to quote from a decision delivered in the UK House of Lords in
a copyright case within the last week:
"The law of property is concerned with rights in things. The distinction
which exists between the exercise of rights and the obtaining of
discretionary remedies is of fundamental importance in any legal system.
There is no concept in our law that is more absolute than a right of
property. Where it exists, it is for the owner to exercise it as he
pleases. He does not need the permission of the court, nor is it subject
to the exercise of the court's discretion. The benefits that flow from
intellectual property are the product of this concept. They provide an
incentive to innovation and creativity. A person who has a good idea,
... , is entitled to protect the advantage that he has gained from this
and to earn his reward. These are rights which the court must respect
and which it will enforce if it is asked to do so."
{see
http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090730/fish
er-1.htm}
This paragraph benefits from careful reading but there is absolutely
nothing in this sentiment that need retard any form of open access where
a person does indeed have an absolute right over the [intellectual]
property in question.
Laurence
Laurence Bebbington
Faculty Team Leader (Social Sciences, Law and Education)
Information Services
The University of Nottingham
-----Original Message-----
From: American Scientist Open Access Forum
[mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG] On
Behalf Of Jeffery, KG (Keith)
Sent: 05 August 2009 10:57
To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
Subject: Re: Research: Writ, Reason, and Practice
Charles -
I as certainly not implying you were one of those using the copyright
law discussion disingenuously - I know your work quite well (as you
know).
While I am very keen to ensure there is clarity on copyright law and
practice (precedent)I am equally keen to ensure that researchers know
that - in the domain of scholarly publishing / fair use / research &
education) - most (but not all) of the restrictions apparently imposed
by copyright are, in fact, illusory. Once this is widely known,
appreciated, accepted then one of the FUD (fear, uncertainty, doubt)
barriers to green OA (Harnad definition) is removed.
Best
Keith
----------------------------------------------------------
Prof Keith G Jeffery E: keith.jeffery_at_stfc.ac.uk
Director Information Technology & International Strategy Science and
Technology Facilities Council
Rutherford Appleton Laboratory
Harwell Science and Innovation Campus
Didcot, OXON OX11 0QX UK
T: +44 1235 44 6103 F:+44 1235 44 5147
President ERCIM & STFC Director:
http://www.ercim.org/
W3C Office at CLRC-RAL
http://www.w3.org/
President euroCRIS
http://www.eurocris.org/
VLDB Trustee Emeritus:
http://www.vldb.org/
EDBT Board Member
http://www.edbt.org/
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------------------------------
-----Original Message-----
From: American Scientist Open Access Forum
[mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG] On
Behalf Of C.Oppenheim
Sent: 05 August 2009 07:41
To: AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG
Subject: Re: Research: Writ, Reason, and Practice
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 Harwell
> Science and Innovation Campus
> Didcot, OXON OX11 0QX UK
> T: +44 1235 44 6103 F:+44 1235 44 5147
>
> President ERCIM & STFC Director: http://www.ercim.org/
> W3C Office at CLRC-RAL http://www.w3.org/
> President euroCRIS
> http://www.eurocris.org/ VLDB Trustee Emeritus:
> http://www.vldb.org/
> EDBT Board Member
> http://www.edbt.org/
> ----------------------------------------------------------------------
> --
> ------------------------------
>
> The contents of this email are sent in confidence for the use of the
>intended recipient only. If you are not one of the intended recipients
>do not take action on it or show it to anyone else, but return this
>email to the sender and delete your copy of it
>
> The CCLRC telecommunications systems may be monitored in accordance
>with the policy available from
><http://dlitd.dl.ac.uk/policy/monitoring/monitoring%20statement.htm>.
>
> ----------------------------------------------------------------------
> --
> ------------------------------
>
>
>
> ________________________________
>
>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.
>
--
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