Re: "Authors Re-using Their Own Work"

From: C.Oppenheim <C.Oppenheim_at_LBORO.AC.UK>
Date: Sat, 1 Aug 2009 13:21:39 +0100

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Stevan and others are of course correct that IN PRACTICE there is little a
publisher can do to stop this sort of activity, but that doesn't make it any
more legal.

I agree that there is a significant minority of cases where authors cannot
get rights to redisseminate back from publishers, but the initial query was
in respect to Sage, who let authors retain copyright if the author asks for

The law indeed does not distinguish authors works from other works when
that author has given their rights to the publisher - and rightly so. To
draw an analogy - if you sell your house, unless you built into the sale
agreement a clause which allowed you to use that house, you lose all rights
to the use of that house. the fact that you once owned it is neither here
nor there. The law treats copyright in the same way. the fact that you
once owned it is irrelevant once you give away the copyright.

My view, for what it is worth, is that authors should submit articles only
to a green or gold publisher and should boycott publishers who don't give
permissions to self-archive or to forward copies to colleagues on request.
Easier said than done? In my experience, no, but it may be different in
other subject domains.


On Sat, 1 Aug 2009 07:26:13 -0400
 Stevan Harnad <amsciforum_at_GMAIL.COM> wrote:
> On Sat, Aug 1, 2009 at 5:20 AM,
> C.Oppenheim<> wrote:
> > CO: Yes of course "fair use" and similar exceptions to
> > copyright allow one to
> > make a copy of item whose copyright is owned by someone
> > else for oneself
> > for research or private study as long as that copying
> > does not damage the
> > legitimate commercial interests of the copyright owner.
> > But they do NOT
> > allow you to distribute the copies to anyone who asks
> > for them - that right
> > always remains with the copyright owner. Depending on
> > the country's legal
> > systemm this is called "publication", "communication to
> > the public",
> > "issuing copies to the public" and so on, and is always
> > ifringement. Fair
> > dealing/fair use is for one's own private use.
> All I can do is repeat what I said earlier, which is
> almost certainly
> the real, practical truth of the matter here, regardless
> of the formal
> exegetics, tried and tested through a half-century of
> actual
> researcher practice:
> >> SH: "there is nothing either
> >> defensible or enforceable that a publisher can do
> or say to prevent a
> >> researcher from personally distributing individual
> copies of his own
> >> research findings to individual researchers, for
> research purposes, in any
> >> form he wishes, analog or digital, at any time.
> That is what researchers
> >> have been doing for many decades, whether or not
> their right to do so was
> >> formally enshrined in a publisher's "author-re-use"
> document.
> For a researcher to mail or email reprints or eprints to
> individual
> researchers who request copies of his work for research
> purposes is
> not to "distribute the copies to anyone who asks for
> them."
> > CO: That's why my simple solution - don't assign
> > copyright to the publisher in
> > the first case - helps.
> It is always desirable to reserve copyright where the
> researcher/author can successfully do so, but that is
> not the case
> that is at issue here. The case at issue here is the c.
> 37% of
> peer-reviewed research journal articles for which the
> researcher/author is either unsuccessful or uncertain
> about getting
> his work published with his journal of choice if he does
> not assign
> copyright to the publisher:
> This author-worry is the main obstacle to both 100%
> spontaneous
> self-archiving and to achieving 100% consensus on the
> adoption of
> self-archiving mandates. This is what the ID/OA mandate
> as well as the
> "email eprint request" Button were designed for;
> The worry that the 50-year old uncontested
> research-author practice of
> mailing or emailing reprints or eprints to individual
> researchers who
> request copies of their work for research purposes would
> be
> prosecutable on the grounds that is it illegal to
> "distribute the
> copies to anyone who asks for them" is groundless, both
> intrinsically
> and on the basis of a half century of practical
> precedent.
> It is Open Access that would constitute distributing
> copies to anyone
> who asks for them. Authors fulfilling individual
> requests for research
> purposes constitutes normal research practice.
> Open Access is of course the optimal and inevitable goal
> of research
> and the research community in the online era; but where
> publishers use
> copyright assignment to try to prevent or delay reaching
> that optimal
> and inevitable goal (as the 37% of journals that embargo
> OA are trying
> to do), ID/OA mandates and the "email eprint request"
> Button are the
> practical interim solution, providing 63% OA and 37%
> "Almost-OA" to
> tide over research needs during any access embargo.
> Stevan Harnad
> PS Although I abstain advisedly from any legal
> exegetics, I do note
> that a law that does not make a distinction between the
> author of a
> work (and not a "work for hire") and a 3rd party user
> (neither the author
> nor the publisher) is a curious law indeed, particularly
> when it comes
> to research writing and research usage. It does not
> follow, however,
> that research practice should wait for a formal
> customization. Actual
> concrete research practice has already trumped the many
> odd
> theoretical construals and misconstruals that such an
> ill-fitting law
> would support if the only thing we were interested in
> were abstract
> hermeneutics rather than research progress.
Received on Sat Aug 01 2009 - 18:49:25 BST

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