Perhaps I don't know who the moderator of Sept.98 is. It was the comment I got from a person named "Marvin" that I did not find collegial.
Cheers Alan Story On Fri, 10 Mar 2000 15:41:09 +0000 Charles Oppenheim <c.oppenh...@lboro.ac.uk> wrote: > Alan Story wrote: > >1. On March 10 2000 at 3:00 p.m., an academic (A)completes > >article (X) on "Why Ken Livingstone Should be Mayor of > >London." > > > >2. At 3:10 p.m. (A) posts (X) on her/his personal web > >archives. > > > >As soon as this is done, (A) will have copyright (C) in (X) > >as is meets copyright requirements (e.g. originality, work, > >fixation in tangible form, available to public, etc.) which > >subsists until death of the (A)+70 years. (A) can > >allow anyone to use X (e.g. for non-profit educuational > >purposes). > > > >3. At 3:15 p.m. on 10 March (A) posts (X) to > >publisher(P)...who passes it on to a referee. > > > >4. On the basis of the referees comments, A edits X...which > >nows become X1. (though, see below, the > >differences between X and X1 may not matter for copyright > >infringement purposes....) > > > >5. (B) requires that (A) assigns all copyright, > >re-publication, digitalization rights in X1 to (B). (A) > >agrees and signs the publisher's standard form contract. > >The copyright (C1)(and all other rights) in X1 are owned by > >(P). > > > >6. On 30 March (assume a very speedy (R),(A) and (P)....), > >(P) simultaneously publishes X1 in its hard-copy > >journal and its digital journal. > > > >7. On 1 April, nasty (I) allegedly infringes copyright in > >the article by photocopying a substantial part for use in a > >student course pack (ie. no permission sought, no fee > >paid, no attribution etc.) Unless X and X1 are very > >dramatically different, we can assume that the alleged > >infringement by (I)would be in relation to both X and X1. > > > >Which then raises the following questions.... > > > >1) In the above scenario, what happens to (A)'s copyright > >(C)in X? That is, would A have a cause of action against > >(I)? Or would only (P)? Or would both of them? > > Depends which thing was copied. If it was X that was > copied, then A sues. If it was X1 that was copied, it is P > who sues. the law has always been clear that it is what > was copied that decides. To give you an analogy - imagine > you and I both take a photo of Big Ben at the same time > side by side, and two photos result that are almost > identical. Someone takes my picture and illegally scans it > in to a PC. I can sue; you cannot even though what is > scanned looks like it is from your picture. > > >2)In the proposed scheme, does (A) also assign (C) to (P)? > >(which, unless there were additional contractual clauses > >---- as in the American Physical Society form--- would mean > >that (A)no longer has any rights over X.) > > No, A only assigns C1 to P. > > > >3) If (A) does NOT assign C to (P)and then (P) does > >something with X1 that (A) doesn't like ( e.g. > >allows a crummy journal (CJ) to publish another version > >(now X3) without attribution to (A),) does (A) have a cause > >of action against (P) and (CJ)for copyright infringement? > > In general, once someone has assigned copyright (in this > case in X1) then (s)he has no further say in what happens > to it. Analogy is - you sell your house to someone. That > person promptly paints your old house a disgusting green > colour. You cannot complain as you have no further rights > in the house. > > >That is, although (CJ) has used X1 to publish X3, X3 may > >also likely infringes X...which would give (A) a cause > of >action against (CJ) as the primary infringer and against > >(P) as the secondary infringer. > > X3 is derived from X1, and A has assigned copyright in X1 > to P, so no problem arises. Only P can sue. > > In short, existing law happily caters with your scenario. > > Professor Charles Oppenheim > Dept of Information Science Loughborough University > Loughborough Leics LE11 3TU > > Tel 01509-223065 > Fax 01509-223053 > > ---------------------- Alan Story Kent Law School Eliot College University of Kent Canterbury Kent UK CT2 7NS a.c.st...@ukc.ac.uk Ph. 01227 823316 Fax 01227 827831