Re: Fair-Use/Schmair-Use...
[ The following text is in the "utf-8" character set. ] [ Your display is set for the "iso-8859-1" character set. ] [ Some characters may be displayed incorrectly. ] 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-Us
Re: Fair-Use/Schmair-Use...
[ The following text is in the "utf-8" character set. ] [ Your display is set for the "iso-8859-1" character set. ] [ Some characters may be displayed incorrectly. ] 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 requir
Fwd: [BOAI] BU goes open access for faculty scholarship
Begin forwarded message: From: Carolina Rossini List-Post: goal@eprints.org List-Post: goal@eprints.org Date: February 17, 2009 9:42:50 AM EST (CA) To: BOAI Forum Subject: [BOAI] BU goes open access for faculty scholarship http://www.bu.edu/today/node/8320 University Council Approves Open Access Plan BU TO CREATE FREE ARCHIVE OF FACULTY RESEARCH Dear All, As it is not clear from the Press Release whether this is a mandate or just a recommendation, I've written to Prof. Barbara Millen of BU, co-chair of the committee, to ask for a clarification: First, congratulations on the adoption of the resolution "to support an open access system that would make scholarly work of the faculty and staff available online to anyone, for free, as long as the authors are credited and the scholarship is not used for profit." But could I ask you what the actual policy is? Is it a mandate, like NIH's or Harvard's? Or is it just a request/recommendation/invitation/encouragement to faculty to deposit their work in the new BU archive? It makes a big difference, because experience so far shows that mandates (i.e., requirements) work, whereas requests do not: The NIH mandate was first adopted as a request, and after 2 years it was realized that it had failed -- generating only 4% deposits, which is even below the global baseline for spontaneaou (unmandated) deposit of 15%. But once it was made into a mandate, it quickly reached 60% compliance and is soon likely to approach 100%. If the BU OA policy is indeed a mandate, could I ask you to register it as such in the Registry of Open Access Repositories' Material Archiving Policies (ROARMAP) alongside the 65 other OA Mandates that have been adopted worldwide? Many thanks, Stevan Harnad
Re: John Wiley on RoMEO and John the Baptist on Supererogation
On 17-Feb-09, at 9:21 AM, c.oppenh...@lboro.ac.uk wrote: > Let me make my position clear. Comments that I make have no legal > authority. I take no responsibility for any actions a reader might take > (or not take) as a result of reading my opinion, and that in any cases of > doubt, readers should take formal legal advice. Anyone who advises third > parties to do something that is potentially infringing without such a > health warning could find themselves accused by rights owners of > authorising infringement, which means they would be just as liable to pay > damages as the person who took the advice. > > I agree with Talat that 100% OA is not necessarily inevitable, despite my > hope that it does come to pass. Just because something is technically > possible and makes economic sense does not mean it is bound to occur. Let me make my position clear. Comments that I make have no legal authority. Nor am I addressing 3rd parties. (I am addressing only the authors of refereed journal articles.) And all I am advising is that they not take leave of their common sense in favor of far-fetched flights of formal fancy -- especially incoherent ones. Amen. Johannes > > > 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 > -Original Message- > From: Repositories discussion list > [mailto:jisc-repositor...@jiscmail.ac.uk] On Behalf Of Talat Chaudhri > Sent: 17 February 2009 12:51 > To: jisc-repositor...@jiscmail.ac.uk > Subject: Re: John Wiley on RoMEO and John the Baptist on Supererogation > > This may be your view, Stevan, but it is frankly inappropriate to tell > others to break the law at their own risk, whatever your views in terms of > OA. That is their risk assessment, the business of their institutions and > nobody else's. Clearly the copyright system is incoherent and difficult, > but nonetheless these publishers have indisputable copyright and may > licence it as they please, even incoherently. The upshot is unknown, of > course, as nothing has ever been tested, and this may continue for better > or for worse, probably a mix of both. > > I hope others on this list will agree with me that we should not tell > other institutions how to manage their legal liabilities, much as we would > not do so for individuals of our personal acquaintance, especially in > ignorance of both their specific circumstances and the precise legal > situation. No doubt you will continue to do so despite my protestation, > but I feel duty bound to voice this complaint on behalf of repository > managers and their institutions, amongst whose number I was counted until > very recently. > > There is no evidence that OA is such a foregone conclusion as you say, > much as I would like it to be true as much as you do. We deal here with > practical issues, not with your imagined "Zeno's paradox", which nobody > but you discusses on this list. > > > Talat Chaudhri > > Stevan Harnad wrote: > > On 17-Feb-09, at 4:32 AM, Ian Stuart wrote: > > > > > Leslie Carr wrote: > > > > > > > > HOWEVER one step away (literally) from the W-B "Best Practice > > > > document" is the W-B "Copyright FAQ" in which they elaborate that > > > > although the ELF is used for societies, the wholly owned journals > > > > still retain the practice of Copyright Assignment. The sample > > > > Copyright Assignment document (for the aptly chosen International > > > > Headache Society) contains the following text: > > > > quote > > > > Such preprints may be posted as electronic files on the author's own > > > > website for personal or professional use, or on the author's > > > > internal university, college or corporate networks/intranet, or > > > > secure external website at the author's institution, but not for > > > > commercial sale or for any systematic external distribution by a > > > > third party (e.g. a listserve or database connected to a public > > > > access server). > > > > - end - > > > > I *think* that an institutional repository is OK by that definition. > > > > After all, it is a secre external website at the author's > > > > institution which is not offering the item for sale nor run by a > > > > third party. > > > > > > Where does this leave the Subject Repository (ex aXive)? > > > It's not the authors own website, or an intranet at the authors local > > > institution, or an external server at the authors institution... yet > > > it also doesn't offer commercial sales or *systematic*[my emphasis] > > > distribution to a third party > > > > > > Where does this leave the Depot? > > > It's /effectively/ an Institutional Repository, but like aXive it's > > > not at the authors institution. > > > > > > or is this one of those questions one shouldn't really ask? > > > > Here's my tuppence worth on this one -- and it's never failed me (or > >
Re: John Wiley on RoMEO and John the Baptist on Supererogation
On Tue, Feb 17, 2009 at 7:51 AM, Talat Chaudhri wrote (on JISC-REPOSITORIES): Clearly the copyright system is incoherent and difficult, but nonetheless these publishers have indisputable copyright and may licence it as they please, even incoherently. Even incoherently? I think Talat underestimates the supra-legal power of the Law of the Excluded Middle. Example: "You may deposit this article on the web if you have a blue-eyed maternal uncle AND you may not deposit this article on the web if you have a blue-eyed maternal uncle." Unverifiable, unenforcable, and incoherent. But Talat feels it would be "frankly inappropriate to tell others to break the law at their own risk" by ignoring something like this. There's no accounting for feelings. Be sensible (as the half-million physicists and three-quarter million computer scientists have been, for two decades now): Take the "risk." Stevan
Re: John Wiley on RoMEO and John the Baptist on Supererogation
On 17-Feb-09, at 4:32 AM, Ian Stuart wrote: Leslie Carr wrote: HOWEVER one step away (literally) from the W-B "Best Practice document" is the W-B "Copyright FAQ" in which they elaborate that although the ELF is used for societies, the wholly owned journals still retain the practice of Copyright Assignment. The sample Copyright Assignment document (for the aptly chosen International Headache Society) contains the following text: > quote Such preprints may be posted as electronic files on the author's own website for personal or professional use, or on the author's internal university, college or corporate networks/intranet, or secure external website at the author's institution, but not for commercial sale or for any systematic external distribution by a third party (e.g. a listserve or database connected to a public access server). - end - I *think* that an institutional repository is OK by that definition. After all, it is a secre external website at the author's institution which is not offering the item for sale nor run by a third party. Where does this leave the Subject Repository (ex aXive)? It's not the authors own website, or an intranet at the authors local institution, or an external server at the authors institution... yet it also doesn't offer commercial sales or *systematic*[my emphasis] distribution to a third party Where does this leave the Depot? It's /effectively/ an Institutional Repository, but like aXive it's not at the authors institution. or is this one of those questions one shouldn't really ask? Here's my tuppence worth on this one -- and it's never failed me (or anyone who has applied it, since the late 1980's. when the possibilities first presented themselves) as a practical guide for action: (A shorter version of this heuristic would be "If the physicists had been foolish enough to worry about it in 1991, or the computer scientists still earlier, would we have the half-million papers in Arxiv or three-quarter million in Citeseerx that we have, unchallenged, in 2009?"): When a publisher starts to make distinctions that are more minute than can even be made sense of technologically, and are unenforceable, ignore them: The distinction between making or not-making something freely available on the Web is coherent (if often wrong-headed). The distinction between making something freely available on the web here but not there is beginning to sound silly (since if it's free on the web, it's effectively free everywhere), but we swallow it, if the "there" is a 3rd-party rival free-riding publisher, whereas the "here" is the website of the author's own institution. Avec les dieux il y a des accommodements: Just deposit in your IR and port metadata to CRs. But when it comes to DEPOT -- which is an interim "holding space" provided (for free) to each author's institution, to hold deposits remotely until the institution creates its own IR, at which time they are ported home and removed from DEPOT -- it is now bordering on abject absurdity to try to construe DEPOT as a "3rd-party rival free-riding publisher". We are, dear colleagues, in the grip of an orgy of pseudo-juridical and decidedly supererogatory hair-splitting on which nothing whatsoever hinges but the time, effort and brainware we perversely persist in dissipating on it. This sort of futile obsessiveness is -- in my amateur's guess only -- perhaps the consequence of two contributing factors: (1) The agonizingly (and equally absurdly) long time during which the research community persists in its inertial state of Zeno's Paralysis about self-archiving (a paralysis of which this very obsession with trivial and ineffectual formal contingencies is itself one of the symptoms and causes). It has driven many of us bonkers, in many ways, and this formalistic obsessive-compulsive tendency is simply one of the ways. (In me, it has simply fostered an increasingly curmudgeonly impatience.) The cure, of course, is deposit mandates. and (2) The substantial change in mind-set that is apparently required in order to realize that OA is not the sort of thing governed by the usual concerns of either library cataloguing/indexing or library rights-management: It's something profoundly different because of the very nature of OA. Rest your souls. Universal OA is a foregone conclusion. It is optimal, and it is inevitable. The fact that it is also proving to be so excruciatingly -- and needlessly -- slow in coming is something we should work to remedy
