Re: Zen response to e-Archiving Challenge

From: Albert Henderson <chessNIC_at_COMPUSERVE.COM>
Date: Wed, 30 May 2001 17:10:44 -0400

RE: Re: Zen response to e-Archiving Challenge

on 30 May 2001 "Peter D. Junger" <junger_at_SAMSARA.LAW.CWRU.EDU> wrote:

> Albert Henderson writes:
> : By providing the means to make copies of a work after transferring
> : its copyright and without the consent of the new copyright owner,
> : the author contributes to infringement. He/she is also probably in
> : violation of the transfer agreeement or worse.
> :
> : My impression is that the owner of the means of infringement, in
> : this case owner of the Internet server, is also liable after being
> : informed that copies are being made without the copyright owners'
> : consent.
> It is unusual for authors to ``transfer'' the entire copyright in an
> article to a journal. Normally all that is assigned is the right of
> first publication in a journal.
> Is the situation really so different in the case of scientific journals?

        I am only speaking of learned journals. Your "normally"
        refers to mass media and first serial rights. Learned
        journal contracts that I have seen generally transfer
        the copyright "as a work made for hire" and return to
        the author limited rights, for example, to use the
        material in class and in a monograph of which the author
        is the sole originator.

> Contributory infringement is not likely to apply to a publication of
> a copy of the work before the assignment of the copyright. In fact,
> that could not possibly be a contributory infringement. If you publish
> a copy of a copyrighted work that may be infringement; it isn't
> contributory infringement. But anyway if the author publishes a copy of
> the copyrighted work before he assigns the copyright, that publication is
> not an infringement.

        I am saying that after the transfer of copyright, the
        article must be withdrawn unless the agreement provides
        for continued publication of the preprint form of the work.

        The claims, as I read them, that the preprint is somehow
        different than the work affected by the copyright transfer,
        are unrealistic if not downright misleading. They remind
        me of the folks who argue that 5th amendment protections
        against self-incrimination support not filing tax returns ...

> Again, in the case of the publication of preprints, since preprints are
> published before the assignment of copyright, that publication cannot be
> a violation of the ``transfer agreement,'' whatever that is.
> The impression that the owner of the Internet server may be liable is
> perhaps based on the safe-harbour provisions of the Digital Millenium
> Copyright Act, which says that the owner of the server will not be
> liable if he removes the copy after being informed it is claimed to be
> a violation of copyright, but the safe-harbour provisions do not say
> that the server owner is liable if he does not remove the copy. That
> me be a subtle distinction, but it is very important. Especially in
> the case of pre-prints, which are not an infringement of the assignee's
> interest in the copyright, because they were published before the
> assignment.

        My impression, that the owner of the Internet server
        may be liable, refers to the period following the
        transfer of copyright and notice to the server. Continuing
        to publish is a act of contributory infringment.

        Thanks for chiming in. I hope our readers are edified.
        Best wishes,

Albert Henderson
Received on Wed Jan 03 2001 - 19:17:43 GMT

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