Re: Fair-Use/Schmair-Use...

From: Arthur Sale <ahjs_at_OZEMAIL.COM.AU>
Date: Tue, 17 Feb 2009 14:46:25 +1100

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I am glad to see you acknowledging now that assigning copyright is
not the same as selling your house or car (physical objects). What an
author is giving away is a set of restricted rights to copy and
exploit. In the case of copyright assignment they are even giving
away to movie and TV exploitation! Publishers˙˙ insistence on
copyright assignment, which as Sally has pointed out is changing, is
based on authors˙˙ complaisance.


The author, as with everyone one else on the planet, retains rights
to fair use access and copying. Indeed the author cannot sell some
author rights, such as moral rights. In house/car terms, I don˙˙t
know how this would translate ˙˙ maybe in to a right to inspect the
house at any time to allow copying for teaching or research purposes?
Even stretching the metaphor, assigning copyright is more like an
99-year lease of your house.


Depositing data in a repository, though not making it OA, is open to
anyone. It is simply part of preserving what one has produced. I
suspect that a court would even allow putting it on a Learning
Repository, provided access was restricted for teaching purposes to
enrolled students.


I am sorry, but the existence of a complex law does no6t invalidate
people behaving in contradiction to the law or bending it, when it is
foolish. Witness jaywalkers in cities or people who momentarily
minutely exceed the speed limit in their cars. Conscientious
objectors as in WWII are another example. The law will adapt. It is
so patently obvious that in most cases that copyright law has not
kept up with the technology of the Internet, that it would be a very
˙˙courageous˙˙ court that convicted someone of breaching copyright by
having automated backup services, copying an article to a new
computer, or deposition (restricted) in a repository.


Regarding your penultimate paragraph, the law has changed recently
and does change. Australian copyright law is an example. The issue
here is that copyright in respect of music, TV, and other
sold-for-profit works is not completely compatible with that of
given-away-for-free works. The Australian Copyright Act recognises
this. I think that the latest version of the Australian Copyright Act
has gone a long way to handle these problems. I would be very
surprised if it were unique.


Arthur Sale


From: American Scientist Open Access Forum
On Behalf Of
Sent: Monday, 16 February 2009 9:24 PM


Fair use/fair dealing allows an individual to make a copy for his/her
own private study/research (and in a few countries, also for
teaching);  it also gives the author permission to pass a copy of the
item on request to a colleague if that colleague requires it for
research or private study.  I never have argued otherwise.  However,
it does NOT give the person the right to put something up on a
repository, (in many countries) on a Virtual Learning Environment,
etc., without explicit permission from the copyright owner - assuming
that its copyright has been given away.


The law is an ass, but that doesn't give anyone the right to
deliberately flout it.  The same applies to motor cars, where just
because you are able to drive it at 120 miles per hour whilst high on
alcohol or drugs, because the technology allows you to, does not mean
it is legal.  I'd rather this list encouraged respect for the law,
argued for changes in the law, argued for sensible negotiations with
publishers rather than just ignoring the law.


And as for the law catching up?  If you mean, allowing users more
flexibility, I rather fear that is in your dreams!!  The pressure
from rights owners (not publishers, but film, music, software, etc.
industries) is to make copyright law even more in favour of them and
to make the penalties for infringement more severe.


  In any case, as Stevan repeatedly points out, this list is for
those interested in furthering the cause of OA and copyright is not
its main focus.  For that reason I do not propose to continue adding
words to this particular discussion.






Professor Charles Oppenheim
Department of Information Science
Loughborough University
Leics LE11 3TU

Tel 01509-223065
Fax 01509 223053
e mail




From: American Scientist Open Access Forum
On Behalf Of Arthur Sale
Sent: 15 February 2009 01:00
Subject: Re: Fair-Use/Schmair-Use...

I agree with Stevan. A simple reading of copyright law in some
countries does imply that if you sign away copyright you cannot make
copies. But there are many exceptions, including fair use. And the
law is an ass. In most cases it has not caught up with the reality of
IT and in any case it must be read in conjunction with other law.


In practice, when I submit a paper to a journal there will be a copy
on my laptop, my home computer and my work PC (not to mention a
possible copy on a memory stick). The copy in a repository follows
soon after, to satisfy the record-keeping requirements. In the
ensuing days and weeks, other copies are directly created by the
automated back-up process at university (including the repository)
and stored somewhere. Multiple copies are made en route to the
publisher and back.


Only an insane publisher would contest any of this. They would expect
me to keep my article safe and backed up, just in case. They would
also know that any court would throw a case contesting normal
record-keeping and ICT practice out of the window. The Australian
Copyright Act is pretty up to date in this respect and covers this,
as in the extract below and elsewhere. The red is my annotation. Note
that this is Section 200 of the Copyright Act!


I write this at the risk of suggesting that more  angels can dance on
the head of a pin than is commonly thought of. We need to do what is
sensible and wait for the law to catch up, as it will eventually.


Arthur Sale


Use of works and other subject-matter for certain purposes

             (1)  The copyright in a work or other subject˙˙matter is
not infringed by a use of the work or other subject˙˙matter if all
the following conditions exist:

                     (a)  the circumstances of the use (including
those described in paragraphs (b), (c) and (d)) amount to a special

                     (b)  the use is covered by subsection (2), (3)
or (4);

                     (c)  the use does not conflict with a normal
exploitation of the work or other subject˙˙matter;

                     (d)  the use does not unreasonably prejudice the
legitimate interests of the owner of the copyright.

Use by body administering library or archives

             (2)  This subsection covers a use that:

                     (a)  is made by or on behalf of the body
administering a library or archives; and

                     (b)  is made for the purpose of maintaining or
operating the library or archives (including operating the library or
archives to provide services of a kind usually provided by a library
or archives); and

                     (c)  is not made partly for the purpose of the
body obtaining a commercial advantage or profit.

Use by body administering educational institution

             (3)  This subsection covers a use that:

                     (a)  is made by or on behalf of a body
administering an educational institution; and

                     (b)  is made for the purpose of giving
educational instruction; and

                     (c)  is not made partly for the purpose of the
body obtaining a commercial advantage or profit.



From: American Scientist Open Access Forum
On Behalf Of Stevan Harnad
Sent: Saturday, 14 February 2009 10:31 PM


On Sat, Feb 14, 2009 at 3:48 AM, Charles Oppenheim
<> wrote (in JISC-REPOSITORIES):


      Arthur [Sale] is wrong on his final point.  When an
      author assigns copyright to a publisher, the author gives
      away all rights.  It is equivalent to selling your house,
      your car or anything else.  Once you've sold it, you've
      no right to enjoy it's use any more, even though you were
      the previous owner.

      So when an author assigns copyright to a publisher, he or
      she has no rights to keep a back up copy, store it in a
      repository, etc., UNLESS the publisher graciously gives
      permission for the author to do so.  But what the
      publisher cannot do is demand deletion, etc., of earlier
      drafts of the manuscript, because the author has only
      assigned the final accepted version to the publisher.


With all due respect, if this were true, then the author could not
keep and store a paper copy of the final draft of his book in his
attic either (or, for that matter, his author's copy of the published
book). And, as we all know, "earlier drafts" are a slippery slope.
The "penult," which is the refereed draft minus the copy-editing is
an earlier draft. So is an author's draft incorporating corrections.


No, the new medium has features that cannot be coherently, let alone
confidently described, let alone prescribed and proscribed, in this
papyrocentric way. The self-archiving computer scientist (since the
80's) and physicist (since the '90s) authors had it right: "Don't
ask, Don't Tell, Don't Fret, Just Do." Otherwise you will elicit a
welter of inconsistent, and in many cases incoherent opinion and
counter-opinion whilst you languish in a chronic state of Zeno's
Paralysis (as 85% of us foolishly persist in doing, for nigh on two
decades now).


And while I'm in the pulpit, let me also point out that the main
reason for deposit mandates is not to force research authors to do
something they don't really want to do (a few extra bureaucratic
keystrokes, as some of the stalwart defenders of "academic freedom"
seem to imagine), for they all want to maximise the usage and impact
of their research (as a half-century of keystrokes fulfilling
reprint-requests proves): It is to free these special authors from
the irrational inhibitions that keep them in their state of Zeno's


Apologies for this interruption. Please return to your solemn
discussion of angels, heads and pins...


Stevan Harnad


      On Sat, 14 Feb 2009 15:01:59 +1100
       Arthur Sale <ahjs_at_OZEMAIL.COM.AU> wrote:


      Let me assure you that you should credit that a court
      would accept a case
      that repositories fulfil other functions. Indeed in
      Australia we could argue
      that they are required by the Federal Government for the
      purpose of
      institutional publication reporting and research
      evaluation. Tasmanian law
      requires the university to keep records for long-term
      preservation under the
      Archives Act and so do most States.

      The other point you miss is that publishers have no
      rights to prohibit a
      restricted copy being mounted in a repository. If an
      author chooses to keep
      a copy of his or her article in one computer system or
      another (or is
      required to place a copy in a particular one) is of no
      concern whatsoever to
      a publisher. They might as well demand that the author
      delete the manuscript
      from their personal PC once it has been published! Indeed
      my departmental
      backup system makes regular copies from my PC somewhere
      and I don't bother
      enquiring where, nor does any publisher of my work.
      Neither do they demand
      that a particular filing cabinet be used for any paper
      drafts. None of this
      is of any concern to a publisher.

      You and I have had this argument before and you persist
      in this view, but it
      cannot go unchallenged if you keep making it. It does not
      stand up to

      Arthur Sale

      University of Tasmania

Received on Tue Feb 17 2009 - 13:26:37 GMT

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