Research: Writ, Reason, and Practice

From: Stevan Harnad <harnad_at_ecs.soton.ac.uk>
Date: Tue, 4 Aug 2009 06:44:54 -0400

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To summarise:
Arthur is at pains to try to squeeze some reason out of (or into) an
incoherent formal writ that does not fit research writing and
practice and never has.

Charles is at pains to point out that researcher practice for a
half-century, though ubiquitous and uncontested, is not literally in
conformity with current formal writ,   be it coherent or incoherent,
fitting or ill-fitting, so it might be a good idea to rewrite the
writ.

I say let those whose priority is to reformulate incoherent and
ill-fitting formal writs go ahead and pursue their priority. But
meanwhile, let researchers continue their ubiquitous and uncontested
practice: Full speed ahead.

Aside: This formal side-issue has next to nothing to do with Open
Access and Green Open Access Mandates. 
http://bit.ly/S9u1H

Amen.

Stevan Harnad

On 4-Aug-09, at 2:53 AM, C.Oppenheim wrote:

      Was ever thus, Arthur. If I make copies of a document in
      a country with no
      copyright laws at all, and attempt to bring them into
      another country, I am
      breaking the other country's copyright laws if they are
      infringing under
      that other country's rules. Every country with copyright
      law has a clause
      which says it is an offence to import copies that would
      be infringing.   If
      such laws didn't exist, you'd get copyright havens with
      little or no
      copyright laws, from which people could export their
      infringing copies
      around the world. It's not murky at all - it is the basis
      of international
      copyright agreements!  For the record, it's Clause 27(3)
      of the UK Act.

      You may find this all very frustrating;  if you don't
      like it, lobby to
      change the law, but don't deny what the law says.

      Charles

      On Tue, 4 Aug 2009 12:30:58 +1000
      Arthur Sale <ahjs_at_OZEMAIL.COM.AU> wrote:
            Charles




            You miss the point. As the copy leaves my
            Australian

            hands, it is not an infringing copy. It falls
            under an

            exemption and is perfectly legal. From there
            you get into

            the murkier water of trans-border 'law'.
            However, it

            seems extraordinarily likely that if I send
            to someone in

            the UK or EU a perfectly legal copy that they
            have a

            perfect right to accept it in the absence of
            any specific

            customs or ownership legislation to the
            contrary, for

            example as occurs with the receipt of banned
            drugs mailed

            from abroad. No such UK or EU or German law
            exists in

            respect of the holding of copyright works as
            far as I

            know.




            Australian law simply recognises clearly what
            the issue

            is and how to resolve it. It is not in any
            way unique. I

            recognise that the law in some other
            countries is

            sometimes behind the times. However, you
            prompted me to

            look at UK Copyright Law. Here are sections
            28 and 29.


            Chapter III Acts Permitted in relation to
            Copyright

            Works


            Introductory


            28 Introductory provisions


            (1) The provisions of this Chapter specify
            acts which

            may be done in relation to copyright works

            notwithstanding the subsistence of copyright;
            they relate

            only to the question of infringement of
            copyright and do

            not affect any other right or obligation
            restricting the

            doing of any of the specified acts.


            (2) Where it is provided by this Chapter that
            an act

            does not infringe copyright, or may be done
            without

            infringing copyright, and no particular
            description of

            copyright work is mentioned, the act in
            question does not

            infringe the copyright in a work of any
            description.


            (3) No inference shall be drawn from the
            description of

            any act which may by virtue of this Chapter
            be done

            without infringing copyright as to the scope
            of the acts

            restricted by the copyright in any
            description of work.


            (4) The provisions of this Chapter are to be
            construed

            independently of each other, so that the fact
            that an act

            does not fall within one provision does not
            mean that it

            is not covered by another provision.


            General


            29 Research and private study


            (1) Fair dealing with a literary, dramatic,
            musical or

            artistic work for the purposes of research or
            private

            study does not infringe any copyright in the
            work or, in

            the case of a published edition, in the
            typographical

            arrangement.


            (2) Fair dealing with the typographical
            arrangement of a

            published edition for the purposes mentioned
            in

            subsection (1) does not infringe any
            copyright in the

            arrangement.


            (3) Copying by a person other than the
            researcher or

            student himself is not fair dealing if?


            (a) in the case of a librarian, or a person
            acting on

            behalf of a librarian, he does anything which
            regulations

            under section 40 would not permit to be done
            under

            section 38 or 39 (articles or parts of
            published works:

            restriction on multiple copies of same
            material), or


            (b) in any other case, the person doing the
            copying

            knows or has reason to believe that it will
            result in

            copies of substantially the same material
            being provided

            to more than one person at substantially the
            same time

            and for substantially the same purpose.


            While I am not an expert in UK copyright law,
            it seems

            to me that:


            ·         Clauses 28(1) and (2) are the
            exemption

            clauses.


            ·         Research copying is not restricted
            to the

            person doing the copying. Indeed the wording
            makes a

            distinction between ?research? and ?private
            study?

            (Clause 29(1)). It does not even say ?private
            research?.

            All the ?private study? does actually is to
            prohibit

            copying for classes.


            ·         Clause 29(3) is slightly ambiguous
            as it is

            not completely clear who the ?researcher? is:
            producer or

            consumer. However, assuming consumer ? the
            most

            restrictive case and the most probable
            interpretation -

            the law simply requires the producing
            researcher to be

            convinced that he is doing copying for a
            single consumer

            researcher and that it will not be
            disseminated further.

            The clause actually explicitly assumes third
            parties

            (librarians) might be involved.


            UK Law does not seem to be as prehistoric as
            you make

            out. I think there are old misunderstandings
            being

            rehearsed here. Fair dealing (in particular
            copying to

            facilitate research) was and remains legal as
            well as

            common practice, especially in the homeland
            of scientific

            journal.




            Arthur






            -----Original Message-----

            From: American Scientist Open Access Forum

            [mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG]

            On Behalf Of C.Oppenheim

            Sent: Monday, 3 August 2009 5:21 PM

            To:

            AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG

            Subject: Re:
            [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM]

            "Authors Re-using Their Own Work"




            I now understand why Arthur and I disagree.
             He is

            referring to Australian


            Copyright Law, and I am referring to UK law.




            I am happy to accept that Arthur's approach
            is accurate

            in Australian law.


            unfortunately in UK, and most of EU law, it
            isn't.  In

            these countries,


            there is a clear distinction between the
            right of

            reproduction and the


            communication right and the law treats them
            differently.

            Thus, in the UK,


            it is legal for anyone to copy a work for
            themselves

            under fair dealing, but


            fair dealing does not apply to the
            communication right

            (i.e., providing


            things electronically to third parties).




            Thus, unfortunately, whilst Arthur may well
            be able to

            do what he suggests


            within Australia (and no doubt some other
            countries as

            well), what he cannot


            do is send such materials to the EU as the
            recipient

            would be breaking the


            law by importing an infringing copy.  Arthur
            and others

            may well of course


            argue that this is such a trivial illegality
            that the

            risk can gbe taken,


            and I'd agree.  But there's a world of
            difference

            between saying "it's


            illegal, but the risk is trivial" and saying
            "it's

            absolutely legal".




            I am sure readers of the forum are by now
            totally bored

            by this topic so I


            don't intend to say anything more on it,
            other to remind

            them that there are


            numerous solutions to the problem anyway: to
            send a

            requestor an earlier


            version of the work before copyright was
            assigned;  to

            assign copyright but


            make sure the publisher gives permission for
            you to send

            stuff


            electronically to requestors;  or not to
            assign

            copyright at all to the


            publisher.




            Charles




            On Sun, 2 Aug 2009 11:15:16 +1000


            Arthur Sale <ahjs_at_OZEMAIL.COM.AU> wrote:


                  Charles




                  The Australian Act makes no
                  mention of who does the


                  reproduction. Whether I make a
                  reproduction/copy (say


                  electronic by email, or photocopy
                  my manuscript or the


                  journal, or some other form of
                  copy) of my article to


                  give to my PhD student, or he/she
                  does it personally from


                  a CD I lend or a journal issue
                  they borrow, makes no


                  difference. I can even ask an
                  administrative assistant to


                  make the copy for me and deliver
                  it. What matters is that


                  the copy is for the purpose of
                  research or study. Exactly


                  the same applies to a remote
                  researcher who asks me for a


                  copy of my article.




                  I left out sections 1A and 1B of
                  Section 40 but they


                  (amongst other things) even make
                  provision for


                  reproductions of journal articles
                  to be provided to


                  [multiple] off-campus students
                  engaged in a course of


                  study.




                  The Australian Act simply
                  recognises that research


                  thrives on dissemination. I might
                  add that it is equally


                  sensible in other areas, such as
                  photography of copyright


                  works located permanently or
                  temporarily in public


                  places.




                  But Stevan is right. The law is
                  not the issue. I merely


                  pointed out that the Australian
                  Act is more sensible than


                  most in that it legitimises what
                  is common practice, so


                  common indeed as to be hardly
                  worth remarking on except


                  when people query it. The facts
                  are that researchers have


                  practised copying of research
                  articles and sending copies


                  to fellow researchers for a long
                  time, and they continue


                  to do so. My memory of this goes
                  back to when I started


                  work as an academic in 1961, 48
                  years ago. My publishers


                  then even asked me how many
                  reprints I wanted - not


                  necessary these days.




                  Arthur Sale


                  University of Tasmania




                  -----Original Message-----


                  From: American Scientist Open
                  Access Forum


                  [mailto:AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG]


                  On Behalf Of C.Oppenheim


                  Sent: Saturday, 1 August 2009
                  10:31 PM


                  To:


                  AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM_at_LISTSERVER.SIGMAXI.ORG


                  Subject: Re:
                  [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM]


                  "Authors Re-using Their Own Work"




                  The Austrlain Act does indeed
                  permit fair dealing for


                  one's own research or


                  private study;  but it doesn't
                  permit copying for


                  distribution to third


                  parties.




                  I am slightly alarmed that there
                  is this


                  misunderstanding about copyright


                  law.  Fair dealing for research
                  or private study is


                  when you make a copy


                  for one's own research or private
                  study.  Thus, in law,


                  if Dr Jones asks Dr


                  Smith for an electronic  copy of
                  Dr Smith's article, and


                  Dr Smith gave away


                  the copyright to Megacorp
                  Publishers, then Dr Smith


                  should strictly not


                  supply that copy (unless the
                  publisher has granted


                  permission for do such


                  things)  b3ecause the copy isn't
                  then for Dr Smith's own


                  research or private


                  study, but should advise Dr Jones
                  to make his own fair


                  dealing copy.
Received on Tue Aug 04 2009 - 13:05:58 BST

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