Re: Call for Commentary:

From: Alan Story <>
Date: Fri, 7 Dec 2001 15:38:22 -0000

Dear Herve:

On your second strand, breaking publishers' monopoly and the question of
assignment of copyright ( which as Stevan points out is
complimentary).....and here speaking from the perspective of the UK.

The "assignment as a condition of publication" contracts that publishers
require academic authors to sign are "unreasonable", defining "unreasonable"
as meaning
"exorbitant", "immoderate", " arbitrary", or "confiscatory " (Black's Law
Dictionary, 6th edition). Here is the nature of the unreasonable economic
exchange that occurs: the publisher receives at no cost a copy of the
article, increasingly in a proof-read and digitalised format, and acquires
all rights in that work, including first publication, copyright,
re-publication and digitalisation rights. All that, in fact, is needed is
first publication rights. The author receives no direct financial
compensation, though certainly indirect financial rewards in the form of
possible career advancement and a higher salary. Further, not only does not
the author lose all control over the further use of or access to this work
( in fact, a teacher in the UK must charge a copyright royalty fee to
her/his own classroom students if she/he wishes to distribute to them
her/his own article), but universities, who have paid the salary of the
academic author, must buy back from publishers and reproduction rights
organisation (RROs) what they have given away for free. Indeed, under the
terms of copyright licensing schemes for universities in the UK, they must
buy back what they have given away for free as many as four times: first, to
purchase of the actual book or journal; second, to allow "fair dealing"
photocopying by students and teachers in a university library (and it should
be added that why a university has to pay for the right to undertake "fair
dealing" with a work remains controversial, to say the least); third, to
place a photocopy in a university short-loan collection; and fourth, to use
the material in a non-profit classroom course pack printed at a non-profit
university print centre.

Not only is this a rather questionable business model for universities--- to
understate the absurdity of this situation --- for the production and
distribution of knowledge, but it also dramatically decreases access to and
use of that knowledge. And it is the signing of an "unreasonable" contract
that lies at the centre of this tangled and inequitable web of copyright
power relations and limitations on access.

But here is the problem and one possible solution: in the UK, as in many
other jurisdictions,"unreasonable contracts" are considered as contracts
that are contrary to public policy and "unreasonable" terms in such
contracts are unenforceable, that is, they can be breached without penalty.
The UK legislation governing such contracts is The Unfair Contract Terms Act
1977. Parties who consider that they have signed an "unreasonable" contract
can, if necessary, commence a legal action to have "unreasonable" terms in
such a contract declared unenforceable. ( See S. 3 (2) (b) and S. 11).
Initially then The Unfair Contract Terms Act 1977 might seem to provide the
statutory basis for a challenge as to the "reasonableness" of certain
contracts which most authors are required to sign with publishers. There is,
however, a key exemption (or colloquially, a "loop-hole") that prevents such
challenges: Section 1 (c) of Schedule 1 of the Act states that Section 3 of
the Act does not extend to any contract that relates to the "creation or
transfer of a right or interest in. copyright"(or other types of
intellectual property) Hence, such contracts cannot be challenged by
aggrieved authors.

Working to amend the Schedule 1 of this Act and to bring contracts dealing
with the transfer of copyright within the scope of this Unfair Contract
Terms act would be one way to allow academics to challenge such contracts.
Mind you, there are others....

Certainly not an easy battle --- here in the UK or in France or
elsewhere --- but, if won, it would have potential to open up both
self-archiving further and also challenge the publisher's monopolies.

Best wishes
Alan Story
Kent Law School
Canterbury UK.

----- Original Message -----
From: "Hervé Le Crosnier" <>
Sent: Friday, December 07, 2001 3:15 PM
Subject: Re: Call for Commentary:

> Hello Stevan,
> I feel you've misinterpreted my proposition on the text-e forum.
> I do feel you're right to say that self-archiving is something good to
> do NOW.
> My problem is that monopolistic publishers ALREADY have science under
> their control. So we have two ways of fighting for freedom of science:
> - one is self archiving (the civil society of science action)
> - another one is to impede monopolistic publishers' hold on science.
> This battlefield needs to convince and to get public bodies (from the
> local/university level to the international level) on our side.
> You say :
> > Prions que la privatisation de la science ne touchera pas a son
> > reportage dans les revues expertisee. Et pendant que la pratique du
> > reportage continue, liberons les rapports en-ligne. Amen.
> > Stevan Harnad, jeudi 29 novembre 19:45 (heure de Paris)
> I fear that the way monopolistic publishers assign copyright (and
> develop new tools on behalf of this catalog property) shows that this
> privatisation of science reporting is already under way.
> And as I alway says : self-archiving gives scientists tools, objectives
> and ethical solutions to act NOW. But we need more, and this will also
> help the involved parties to choose. Consider that the french CNRS, only
> a few years ago, said to its members never to put pre-prints on-line....
> There's a long way to go and we need to clearly expose the complete
> problem to convince.
> I think that we don't only need answers to Henderson's views, but also
> to give propositions to other persons who are wondering. For example
> those in France who give the societies, journal to Elsevier ten years
> ago...
> And my only aim is to ADD other way to your self-archiving solution.
> But I agree with your solution (and more, I will give one of my student
> the projet of installing your self-archiving
> software at my university).
> Yours,
> Hervé Le Crosnier
Received on Fri Dec 07 2001 - 16:01:06 GMT

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