Re: Legal ways around copyright for one's own giveaway texts

From: Alan Story <a.c.story_at_UKC.AC.UK>
Date: Fri, 10 Mar 2000 16:47:39 +0000


Thank you for the collegial tone of your response. Rather
different, I must say that the response I got from the
list's moderator.

A few responses...

1) To change the facts slightly from my earlier
scenario, let's assume that X and X1 are exactly the same.
Or, to keep the same facts from my earlier post, assume
that CJ copies a section (a substantial part) that is the
same in X and X1. I take your point about the importance of
the question" from where was it copied?" In an infringement
situation, there would be an interesting evidentiary problem
as whether CJ actually copied from X or X1. I am not a
expert in computer technicalities, but CJ might want to/ be
able to disguise the fact as to where it got the
material from as P would be in a significantly stronger
position to enforce rights than A.

2) I assume you agree with my point that once A posts X on
an archives (and I take Stevan's comment that it is not a
private archives), copyright in X would subsist...with
A as the rights holder. So if P asked A, does copyright
already subsist in this work X, A would have to answer yes.
And if P asked A, am I getting rights to an original work?
(that is, has it been copied from somewhere else?), A would
have to answer, "no, it has been copied" ( though not
perhaps the best word, perhaps better would be " no, it is
a copy of an original work, mine.") All of which raises
the question: would publishers consent to the
"self-archiving" stance...which ultimately will be a
question of power and economics. A question for another

3) Again, assume for simplicity that X and X1 are
exactly the same, copyright would subsist simultaneously
with A and P in the same work once P acquired rights to
it.An interesting notion would be interesting
to see how courts would react. And I have to think about
this further myself. I come back to the question: would
subsist in X1? Would it meet the criteria of an "ORIGINAL
literary work"? I will ponder this on the weekend.

4) On your house painting analogy:

Yes, when you sell your house to someone, you have no
rights as to how that person paints it. You have
alienated all of your rights. But,in my scenario
(A retains copyright in X), A also still retains rights in
the work. That is, the existence of dual copyright (held by
A and P) would both give them rights...which is different
than a typical house sale. ( In some house sales,
they are two owners, for example, and you have to buy
rights from both to acquire all of the rights). To continue
the analogy, when someone acquired "rights" in a
literary work owned by two people, they would not acquire
all of the rights if they only purchased them from one

Must leave work to look after my kids....
Alan Story

On Fri, 10 Mar 2000 15:41:09 +0000 Charles Oppenheim
<C.Oppenheim_at_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
Ph. 01227 823316
Fax 01227 827831
Received on Mon Jan 24 2000 - 19:17:43 GMT

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