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Thanks Charles We are agreed then on the following points: · The ÿÿSelling the houseÿÿ analogy is a poor one. The object (a research article) is in fact never sold or transferred, even by assignment of copyright. A manuscript can of course be sold under common law, but that does not impact on copy rights. · Deposition of a research article in a repository while keeping it Restricted, just like all other types of preservation, is open to any author. · Copyright law can and does change as a consequence of social pressure and non-conformance. In respect of whether copyright consists of copy rights, or prevention of infringing copying, I leave that to the consortium of angels on the head of the OA pin, with confidence that this is an irresolvable issue. I just insert as evidence for the prosecution side the section of the Australian Copyright Act that deals with literary works. For completeness I show sections 31(3)-31(7) though these are solely in relation to computer programs and performances. I point also to the sections relating to right to copy without infringement (such as fair use) and indeed the right to photograph copyright works installed in public places such as free-standing sculptures in a park or plaza (lots of them in the UK though probably many are out of copyright), or pictures in a gallery as evidence of ÿÿrightsÿÿ granted under copyright. I concede to the defence that there are also sections in the Act relating to infringements and remedies. The section I quote also illustrates that copyright varies by the type of work, though as the Act extends to 249 major sections I do not propose to go into detail. Best wishes Arthur Sale COPYRIGHT ACT 1968 - SECT 31 Nature of copyright in original works (1) For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right: (a) in the case of a literary, dramatic or musical work, to do all or any of the following acts: (i) to reproduce the work in a material form; (ii) to publish the work; (iii) to perform the work in public; (iv) to communicate the work to the public; (vi) to make an adaptation of the work; (vii) to do, in relation to a work that is an adaptation of the firstÿÿmentioned work, any of the acts specified in relation to the firstÿÿmentioned work in subparagraphs (i) to (iv), inclusive; and (b) in the case of an artistic work, to do all or any of the following acts: (i) to reproduce the work in a material form; (ii) to publish the work; (iii) to communicate the work to the public; and (c) in the case of a literary work (other than a computer program) or a musical or dramatic work, to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; and (d) in the case of a computer program, to enter into a commercial rental arrangement in respect of the program. (2) The generality of subparagraph (1)(a)(i) is not affected by subparagraph (1)(a)(vi). (3) Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a machine or device in which a computer program is embodied if the program is not able to be copied in the course of the ordinary use of the machine or device. (4) The reference in subsection (3) to a device does not include a device of a kind ordinarily used to store computer programs (for example, a floppy disc, a device of the kind commonly known as a CD ROM, or an integrated circuit). (5) Paragraph (1)(d) does not extend to entry into a commercial rental arrangement if the computer program is not the essential object of the rental. (6) Paragraph (1)(c) does not extend to entry into a commercial rental arrangement if: (a) the copy of the sound recording concerned was purchased by a person ( the record owner ) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994 ; and (b) the commercial rental arrangement is entered into in the ordinary course of a business conducted by the record owner; and (c) the record owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements of the same kind, when the copy was purchased. (7) Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a computer program if: (a) the copy of the computer program was purchased by a person ( the program owner ) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994 ; and (b) the commercial rental arrangement is entered into in the ordinary course of a business conducted by the program owner; and (c) the program owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements in respect of computer programs, when the copy was purchased. From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of c.oppenh...@lboro.ac.uk Sent: Wednesday, 18 February 2009 1:06 AM To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] Fair-Use/Schmair-Use... I did say I would not comment further on this, but Arthur makes some incorrect claims. Moral Rights are nothing to do further copying, so are a red herring in this debate. Assigning copyright, incidentally, is NOT selling rights to copy and exploit. It is assigning rights to PREVENT OR AUTHORISE the copying and exploitation - somewhat different! As the owner of a house, I don't just have the right to live there, I also have the right to prevent third parties from entering or using my house. I don't have the right to use it for illegal purposes, such as growing cannabis plants. When I sell the house, I lose the right to live there or to prevent others from living there. So it's true the analogy with houses is not 100% perfect, but it is certainly closer than the idea of a 99 year lease that Arthur suggests. The idea that a Court would permit deposit in a Learning Repository is nonsense in UK law. There is no fair dealing for teaching in UK law, and that's why UK Universities have to pay a significant licence fee to copyright owners for permission to place copies of scholarly articles on their VLEs. Arthur wants to ignore laws just because they are complex/inconvenient. Good luck to him. But he shouldn't recommend such actions to others. That's called authorising infringement or just plain conspiracy in UK law. Charles Professor Charles Oppenheim Head Department of Information Science Loughborough University Loughborough Leics LE11 3TU Tel 01509-223065 Fax 01509 223053 e mail c.oppenh...@lboro.ac.uk ____________________________________________________________________________ From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Arthur Sale Sent: 17 February 2009 03:46 To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: Fair-Use/Schmair-Use... Charles I am glad to see you acknowledging now that assigning copyright is not the same as selling your house or car (physical objects). What an author is giving away is a set of restricted rights to copy and exploit. In the case of copyright assignment they are even giving away to movie and TV exploitation! Publishersÿÿ insistence on copyright assignment, which as Sally has pointed out is changing, is based on authorsÿÿ complaisance. The author, as with everyone one else on the planet, retains rights to fair use access and copying. Indeed the author cannot sell some author rights, such as moral rights. In house/car terms, I donÿÿt know how this would translate ÿÿ maybe in to a right to inspect the house at any time to allow copying for teaching or research purposes? Even stretching the metaphor, assigning copyright is more like an 99-year lease of your house. Depositing data in a repository, though not making it OA, is open to anyone. It is simply part of preserving what one has produced. I suspect that a court would even allow putting it on a Learning Repository, provided access was restricted for teaching purposes to enrolled students. I am sorry, but the existence of a complex law does no6t invalidate people behaving in contradiction to the law or bending it, when it is foolish. Witness jaywalkers in cities or people who momentarily minutely exceed the speed limit in their cars. Conscientious objectors as in WWII are another example. The law will adapt. It is so patently obvious that in most cases that copyright law has not kept up with the technology of the Internet, that it would be a very ÿÿcourageousÿÿ court that convicted someone of breaching copyright by having automated backup services, copying an article to a new computer, or deposition (restricted) in a repository. Regarding your penultimate paragraph, the law has changed recently and does change. Australian copyright law is an example. The issue here is that copyright in respect of music, TV, and other sold-for-profit works is not completely compatible with that of given-away-for-free works. The Australian Copyright Act recognises this. I think that the latest version of the Australian Copyright Act has gone a long way to handle these problems. I would be very surprised if it were unique. Arthur Sale From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of c.oppenh...@lboro.ac.uk Sent: Monday, 16 February 2009 9:24 PM To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] Fair-Use/Schmair-Use... Fair use/fair dealing allows an individual to make a copy for his/her own private study/research (and in a few countries, also for teaching); it also gives the author permission to pass a copy of the item on request to a colleague if that colleague requires it for research or private study. I never have argued otherwise. However, it does NOT give the person the right to put something up on a repository, (in many countries) on a Virtual Learning Environment, etc., without explicit permission from the copyright owner - assuming that its copyright has been given away. The law is an ass, but that doesn't give anyone the right to deliberately flout it. The same applies to motor cars, where just because you are able to drive it at 120 miles per hour whilst high on alcohol or drugs, because the technology allows you to, does not mean it is legal. I'd rather this list encouraged respect for the law, argued for changes in the law, argued for sensible negotiations with publishers rather than just ignoring the law. And as for the law catching up? If you mean, allowing users more flexibility, I rather fear that is in your dreams!! The pressure from rights owners (not publishers, but film, music, software, etc. industries) is to make copyright law even more in favour of them and to make the penalties for infringement more severe. In any case, as Stevan repeatedly points out, this list is for those interested in furthering the cause of OA and copyright is not its main focus. For that reason I do not propose to continue adding words to this particular discussion. Charles Professor Charles Oppenheim Head Department of Information Science Loughborough University Loughborough Leics LE11 3TU Tel 01509-223065 Fax 01509 223053 e mail c.oppenh...@lboro.ac.uk ____________________________________________________________________________ From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Arthur Sale Sent: 15 February 2009 01:00 To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: Fair-Use/Schmair-Use... I agree with Stevan. A simple reading of copyright law in some countries does imply that if you sign away copyright you cannot make copies. But there are many exceptions, including fair use. And the law is an ass. In most cases it has not caught up with the reality of IT and in any case it must be read in conjunction with other law. In practice, when I submit a paper to a journal there will be a copy on my laptop, my home computer and my work PC (not to mention a possible copy on a memory stick). The copy in a repository follows soon after, to satisfy the record-keeping requirements. In the ensuing days and weeks, other copies are directly created by the automated back-up process at university (including the repository) and stored somewhere. Multiple copies are made en route to the publisher and back. Only an insane publisher would contest any of this. They would expect me to keep my article safe and backed up, just in case. They would also know that any court would throw a case contesting normal record-keeping and ICT practice out of the window. The Australian Copyright Act is pretty up to date in this respect and covers this, as in the extract below and elsewhere. The red is my annotation. Note that this is Section 200 of the Copyright Act! I write this at the risk of suggesting that more angels can dance on the head of a pin than is commonly thought of. We need to do what is sensible and wait for the law to catch up, as it will eventually. Arthur Sale COPYRIGHT ACT 1968 - SECT 200AB Use of works and other subject-matter for certain purposes (1) The copyright in a work or other subjectÿÿmatter is not infringed by a use of the work or other subjectÿÿmatter if all the following conditions exist: (a) the circumstances of the use (including those described in paragraphs (b), (c) and (d)) amount to a special case; (b) the use is covered by subsection (2), (3) or (4); (c) the use does not conflict with a normal exploitation of the work or other subjectÿÿmatter; (d) the use does not unreasonably prejudice the legitimate interests of the owner of the copyright. Use by body administering library or archives (2) This subsection covers a use that: (a) is made by or on behalf of the body administering a library or archives; and (b) is made for the purpose of maintaining or operating the library or archives (including operating the library or archives to provide services of a kind usually provided by a library or archives); and (c) is not made partly for the purpose of the body obtaining a commercial advantage or profit. Use by body administering educational institution (3) This subsection covers a use that: (a) is made by or on behalf of a body administering an educational institution; and (b) is made for the purpose of giving educational instruction; and (c) is not made partly for the purpose of the body obtaining a commercial advantage or profit. From: American Scientist Open Access Forum [mailto:american-scientist-open-access-fo...@listserver.sigmaxi.org] On Behalf Of Stevan Harnad Sent: Saturday, 14 February 2009 10:31 PM To: american-scientist-open-access-fo...@listserver.sigmaxi.org Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] Fair-Use/Schmair-Use... On Sat, Feb 14, 2009 at 3:48 AM, Charles Oppenheim <c.oppenh...@lboro.ac.uk> wrote (in JISC-REPOSITORIES): Arthur [Sale] is wrong on his final point. When an author assigns copyright to a publisher, the author gives away all rights. It is equivalent to selling your house, your car or anything else. Once you've sold it, you've no right to enjoy it's use any more, even though you were the previous owner. So when an author assigns copyright to a publisher, he or she has no rights to keep a back up copy, store it in a repository, etc., UNLESS the publisher graciously gives permission for the author to do so. But what the publisher cannot do is demand deletion, etc., of earlier drafts of the manuscript, because the author has only assigned the final accepted version to the publisher. With all due respect, if this were true, then the author could not keep and store a paper copy of the final draft of his book in his attic either (or, for that matter, his author's copy of the published book). And, as we all know, "earlier drafts" are a slippery slope. The "penult," which is the refereed draft minus the copy-editing is an earlier draft. So is an author's draft incorporating corrections. No, the new medium has features that cannot be coherently, let alone confidently described, let alone prescribed and proscribed, in this papyrocentric way. The self-archiving computer scientist (since the 80's) and physicist (since the '90s) authors had it right: "Don't ask, Don't Tell, Don't Fret, Just Do." Otherwise you will elicit a welter of inconsistent, and in many cases incoherent opinion and counter-opinion whilst you languish in a chronic state of Zeno's Paralysis (as 85% of us foolishly persist in doing, for nigh on two decades now). And while I'm in the pulpit, let me also point out that the main reason for deposit mandates is not to force research authors to do something they don't really want to do (a few extra bureaucratic keystrokes, as some of the stalwart defenders of "academic freedom" seem to imagine), for they all want to maximise the usage and impact of their research (as a half-century of keystrokes fulfilling reprint-requests proves): It is to free these special authors from the irrational inhibitions that keep them in their state of Zeno's Paralysis. Apologies for this interruption. Please return to your solemn discussion of angels, heads and pins... Stevan Harnad Charles On Sat, 14 Feb 2009 15:01:59 +1100 Arthur Sale <a...@ozemail.com.au> wrote: Talat Let me assure you that you should credit that a court would accept a case that repositories fulfil other functions. Indeed in Australia we could argue that they are required by the Federal Government for the purpose of institutional publication reporting and research evaluation. Tasmanian law requires the university to keep records for long-term preservation under the Archives Act and so do most States. The other point you miss is that publishers have no rights to prohibit a restricted copy being mounted in a repository. If an author chooses to keep a copy of his or her article in one computer system or another (or is required to place a copy in a particular one) is of no concern whatsoever to a publisher. They might as well demand that the author delete the manuscript from their personal PC once it has been published! Indeed my departmental backup system makes regular copies from my PC somewhere and I don't bother enquiring where, nor does any publisher of my work. Neither do they demand that a particular filing cabinet be used for any paper drafts. None of this is of any concern to a publisher. You and I have had this argument before and you persist in this view, but it cannot go unchallenged if you keep making it. It does not stand up to examination. Arthur Sale University of Tasmania