Re: Research: Writ, Reason, and Practice

From: Sally Morris <>
Date: Wed, 5 Aug 2009 15:00:03 +0100

In our own study (see, anxieties
about copyright were mentioned by just under 3% of those who gave
their views for or against self-archiving.  Quality concerns and
version proliferation were much more commonly mentioned





Sally Morris


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Clapham, Worthing, West Sussex BN13 3UU, UK


Tel: +44(0)1903 871286

Fax: +44(0)8701 202806



From: American Scientist Open Access Forum
On Behalf Of Jeffery, KG (Keith)
Sent: 04 August 2009 12:00
Subject: Re: Research: Writ, Reason, and Practice


Stevan -

many thanks for a succinct summary.  However, while I agree it has
nothing to do strictly with green OA, the subject of copyright has
been used by some disingenuously to try to dissuade authors from
self-archiving of peer-reviewed material as you well know.  Debunking
the myth could prove useful to achieving greater than 15%




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From: American Scientist Open Access Forum
On Behalf Of Stevan Harnad
Sent: 04 August 2009 11:45
Subject: Research: Writ, Reason, and Practice

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
that other country's rules. Every country with copyright law has a
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
around the world. It's not murky at all - it is the basis of
copyright agreements!  For the record, it's Clause 27(3) of the UK

You may find this all very frustrating;  if you don't like it, lobby
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 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





      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





      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.




      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



      (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



      (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



      ·         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











      -----Original Message-----

      From: American Scientist Open Access Forum


      On Behalf Of C.Oppenheim

      Sent: Monday, 3 August 2009 5:21 PM




      "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



      electronically to requestors;  or not to assign

      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


            reproductions of journal articles to be
            provided to


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






            The Australian Act simply recognises that


            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






            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


            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


            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


            should strictly not


            supply that copy (unless the publisher has


            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.




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