Re: PostGutenberg Copyrights and Wrongs for Give-Away Research

From: Chris Zielinski <informania_at_SUPANET.COM>
Date: Mon, 22 Jul 2002 16:27:25 +0100

Fytton Rowland asked:

< But whether I transfer the IP to someone else or not, in the case of
text, I still retain the moral right to be identified as its author, and
for it not to be changed, etc. Am I right?>

Yes in droit d'auteur countries (France, Germany, etc.).

Yes in the UK unless 1) the work is an explicitly excluded moral rights
category like "journalism", 2) the work was written for hire, or 3) the
author was impelled/constrained to relinquish his/her moral rights (as
generally happens in "all-rights" contracts in broadcasting in the UK.
Journal-ism in the sense of papers written for journals would ordinarily
be covered by moral rights, although it's a moot, rarely tested and
probably delicate point if academics are considered as writing for hire
for their institutions (probably not, but don't push it).

No in the US in general, but specific cases could be defended on the
basis of case law.

I was going to write about this in connexion with Stevan's comments on
plagiarism, which I believe could be actionable under civil law, but not
necessarily under copyright.


Chris Zielinski
Director, Information Waystations and Staging Posts Network
18 Monks Orchard, Petersfield, Hants GU32 2JD, United Kingdom
Tel: Home: 0044-1730-301297 Office: 0044-1730-710324
Mobile: 0044-797-10-45354 Fax: 0044-1730-265398
web site:

-----Original Message-----
From: September 1998 American Scientist Forum
Sent: 22 July 2002 12:40
Subject: Re: PostGutenberg Copyrights and Wrongs for Give-Away Research

There is still confusion about the term "intellectual property" (IP)
here. IP
is not a propaganda term; it is an accurate description -- if I make
new, it is my property and I can decide whether to sell it, give it
away, lease
it, bequeath it or whatever. If I decide to sell, or give away, my IP
to a
publisher, I lose the right to distribute copies myself unless my
with the publishing company permits me to. If I retain the IP myself
choose to give away copies for nothing to anybody who wants one, I can
prevent others from selling (or giving away) copies without my
permission. But
whether I transfer the IP to someone else or not, in the case of text, I
retain the moral right to be identified as its author, and for it not to
changed, etc.

Am I right?

Fytton Rowland.

Quoting Stevan Harnad <>:

> On Sun, 21 Jul 2002, Richard Stallman wrote:
> >sh>Texts that an author has himself written are his own intellectual
> >sh>property.
> >
> > To refer to a text as someone's "intellectual property" spreads a
> > dangerous propaganda term which also spreads confusion. (See
> > for more
> > of why this is so.)
> Richard, I've read the GNU passage, and I agree that "intellectual
> property" is not a good descriptor for software, as code can be built
> onto and out of others' code and programmers and users are better
> if the code is open and can be modified by others.
> But this formula simply does not fit text. The text I write is indeed
> intellectual property, even if it is give-away text. All that means is
> that no one else is allowed to claim to have authored it.
> Now that I have read your recommended passage, can I ask you to read
> mine?
> "5. PostGutenberg Copyright Concerns"
> We are in agreement that copyright lawyers and perhaps legislators are
> trying to force disparate things -- like music, patents, software, and
> texts (both give-away and non-give-away) -- into the same Procrstean
> bed, and that the results are not only unsatisfactory but sometimes
> logically incoherent.
> But it is important that you should not do the same thing either! What
> is good for and true of software is not necessarily good for and true
> texts.
> >sh>The text is still the author's
> >sh>intellectual property," in the sense that authorship is retained
> >sh>he author, and the text may not be plagiarized by anyone,
> >
> > That is even more confusing, since it stretches the meaning of
> > "intellectual property" even further than normal.
> Not at all. What could be simpler? I wrote this text. No one else may
> claim to have written it. End of story. (The rest is about whether or
> not I deem it a give-away text.)
> Copyright has (and always has had) at least two functions:
> (1) To protect against theft-of-text-authorship (plagiarism)
> (2) To protect against theft-of-text (piracy, a word I know you don't
> like, when applied to software, but perfectly valid when applied to
> non-give-away text)
> ALL text authors want copyright protection of their intellectual
> property
> (sic), their text, from (1), theft-of-text-authorship (plagiarism).
> Only NON-give-away authors want copyright protection of their
> intellectual
> property, their non-give-away text, from (2), theft-of-text (piracy).
> You are quite right that (1) has nothing to do with "copying" in the
> sense of making copies bearing the author's correct name. So perhaps
> legal protection against plagiarism should not be subsumed under
> "copyright" law in this sense. But that is a mere terminological
> for one can certainly describe copying my text without my name, and
> affixing your name to it, as an illicit form of copying. So maybe it
> should stay under copyright law after all.
> > To avoid confusion, I suggest you rewrite it as follows:
> >
> > When you write an article, you are the copyright holder; you
> > are free to give away or sell copies, on-paper or on-line
> > (e.g., by self-archiving), as you see fit.
> Unfortunately, that does not quite cover it. For an author may be
> foolish enough to sign a copyright transfer agreement, assigning all
> rights to give away or sell his texts, online or on paper, to someone
> else, say, a publisher. But that would still not alter the matter of
> intellectual property, i.e., authorship. He would still be the author.
> And if someone else claimed to have authored it, it would still be a
> violation of his rights, even after he had assigned the copyright,
> without restrictions, to a publisher.
> I am not an expert in this (nor especially interested in it, I might
> add), but I believe that it is only if an author puts his text in the
> public domain that he loses the intellectual property rights, i.e., he
> cannot prosecute someone for plagiarizing it.
> (I am not sure about this last matter, and someone may wish to correct
> me,
> but please, let us not side-track the Forum discussion into these
> esoteric
> paths as
> is not what we are concerned about here. We are concerned with
> texts -- peer-reviewed research articles -- for which their authors
> definitely want to retain authorship; but they also want them
> for free for all.)
> See also:
> "PostGutenberg Copyrights and Wrongs for Give-Away Research"
> Stevan Harnad
> NOTE: A complete archive of the ongoing discussion of providing free
> access to the refereed journal literature online is available at the
> American Scientist September Forum (98 & 99 & 00 & 01):
> or
> Discussion can be posted to:
> See also the Budapest Open Access Initiative:
> and the Free Online Scholarship Movement:
Received on Mon Jul 22 2002 - 16:27:25 BST

This archive was generated by hypermail 2.3.0 : Fri Dec 10 2010 - 19:46:36 GMT