Research: Writ, Reason, and Practice

From: Stevan Harnad <>
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

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.


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.


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

            You miss the point. As the copy leaves my

            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


            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



            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

            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

            (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

            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.


            29 Research and private study

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

            artistic work for the purposes of research or

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

            the case of a published edition, in the


            (2) Fair dealing with the typographical
            arrangement of a

            published edition for the purposes mentioned

            subsection (1) does not infringe any
            copyright in the


            (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

            under section 40 would not permit to be done

            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

            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


            ·         Research copying is not restricted
            to the

            person doing the copying. Indeed the wording
            makes a

            distinction between ?research? and ?private

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

            All the ?private study? does actually is to

            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

            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

            (librarians) might be involved.

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

            out. I think there are old misunderstandings

            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



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

            From: American Scientist Open Access Forum


            On Behalf Of C.Oppenheim

            Sent: Monday, 3 August 2009 5:21 PM



            Subject: Re:

            "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

            Thus, in the UK,

            it is legal for anyone to copy a work for

            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

            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

            between saying "it's

            illegal, but the risk is trivial" and saying

            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


            electronically to requestors;  or not to

            copyright at all to the



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

            Arthur Sale <ahjs_at_OZEMAIL.COM.AU> wrote:


                  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


                  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


                  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


                  On Behalf Of C.Oppenheim

                  Sent: Saturday, 1 August 2009
                  10:31 PM



                  Subject: Re:

                  "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


                  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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