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 16:56:38 +0000

Thanks for the reply, Stevan. I am indeed a friendly

Rushed for time, but one to make one point in response to
your comment: " there is no interest whatsoever in
photocopying by 3rd parties... in fact, there is no
particular interest in any form of print on paper."

Until every desk in every university classroom has its own
web-accessible computer (still some way off...), there will
be an interest in paper copies by university teachers.
Paper copies are indispensable in the form student course
packs for study and discussion and debate in class by
reference to words in a text that everyone see in front of
them. Hard copy is not dead yet for instructional

Alan Story
On Fri, 10 Mar 2000 15:37:08 +0000 Stevan Harnad
<> wrote:

> Alan Story is a friendly critic, so I will reply on the assumption that
> we are both looking for a favorable outcome: something that frees the
> givaeway literature (consisting mainly of refereed journal papers) from
> all access-blocking tolls.
> Let us make one important distinction first:
> There are (at least) 2 functions of copyright, but their motivations and
> implications (in the special case of the giveaway literature) are
> radically different:
> (CT) Protection from theft of text (not sought by giveaway authors).
> (CA) Protection from theft of authorship (sought by virtually all
> authors).
> On Fri, 10 Mar 2000, 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.
> Note that (as Ken Weiss recently put it), the genie has now
> been let out of the bottle, for there is no such thing as a
> "personal" archive on the web. Wherever a paper is
> archived, it is "public," in the sense of being publicly
> accessible by anyone and everyone on the web (except if the
> website is firewalled, pass-word protected, and/or
> encrypted -- and that is not what is meant by
> self-archiving in this Forum). The publicly self-archived
> documents can and will be cached in multiple sites,
> harvested, copied and linked-to in ways that are completely
> out of the author's control. For the giveaway author, this
> is exactly what he wants to happen.
> > As soon as this is done, (A) will have copyright (C) in
> (X) > as it 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).
> Fine. That protects the work for CA; no "protection" from
> CT is sought.
> > 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).
> Authors are advised to retain web self-archiving rights,
> but if the publisher does not agree, the rights to the
> final draft (X1) can be signed over; the first draft (X1)
> is already publicly accessible, and copyright cannot be
> violated retroactively.
> > 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.
> There is no interest whatsoever in photocopying by 3rd
> parties in this scenario. In fact, there is no particular
> interest in any form of print on paper. A copy of the
> original text, X, has been publicly archived for one and
> all, and can be (and has been) called up on
> countless people's screens. Whether they commit a crime in
> printing it off (and whether that crime is enforceable) is
> of no interest. The only potential "criminal" at issue
> here, is the giveaway author (A), not a web user (I).
> My contention (and Charles Oppenheim's) is that A has
> committed no crime, either in self-archiving X or in later
> signing C. No 2nd or 3rd parties are on trial or at issue
> here. (Those dominos will take care of themselves; let any
> who wish to brave the waters of legislating and enforcing
> what web-surfers can and cannot print off from web
> pages worry about those things; authors merely desirous of
> self-archiving their own giveaway tests legally need not).
> > 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?
> If someone tries to violate CA (theft of authorship), then
> both A and P may want to go after him. If someone merely
> violates CT (theft of text), A applauds it; the rest is P's
> problem.
> > 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.)
> As I said; A tries to assert the right to self-archive the
> final refereed, accepted draft, X1. If the publisher
> refuses, A only self-archives a list of corrigenda to X,
> the genie that has been out of the bottle since before C
> was assigned.
> > 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? > 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.
> > Alan Story
> > Kent Law School > University of Kent
> No one likes to be plagiarized (CA); Author A might or
> might not take action against CJ for theft of authorship,
> but I doubt that many A's would bother. Once a paper has
> been duly refereed, accepted, published, its priority
> established, and academic credit duly given, plagiarism in
> a crummy journal is for the most part a victimless crime --
> or at least the victim is not A (maybe it's the employer of
> the false author, who promotes him on the strength of his
> plagiarism).
> We are talking about a giveway literature here, rarely
> cited, barely read. The rip-off of a patent or a
> best-seller is just the wrong analogy to hold in mind here.
> The Net, by the way, not only makes plagiarism easier to
> perform; it also makes it easier to detect (if/when it
> matters).
> --------------------------------------------------------------------
> Stevan Harnad
> Professor of Cognitive Science
> Department of Electronics and phone: +44 23-80 592-582
> Computer Science fax: +44 23-80 592-865
> University of Southampton
> Highfield,
> Southampton
> NOTE: A complete archive of this ongoing discussion of
> providing free access to the refereed journal literature is
> available at the American Scientist September Forum (98 &
> 99 & 00):
> You may join the list at the site above.
> Discussion can be posted to:

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

This archive was generated by hypermail 2.3.0 : Fri Dec 10 2010 - 19:45:43 GMT