Re: Zen response to e-Archiving Challenge

From: Peter D. Junger <junger_at_SAMSARA.LAW.CWRU.EDU>
Date: Wed, 30 May 2001 13:31:02 -0400

Albert Henderson writes:

: By providing the means to make copies of a work after transferring
: its copyright and without the consent of the new copyright owner,
: the author contributes to infringement. He/she is also probably in
: violation of the transfer agreeement or worse.
: My impression is that the owner of the means of infringement, in
: this case owner of the Internet server, is also liable after being
: informed that copies are being made without the copyright owners'
: consent.

It is unusual for authors to ``transfer'' the entire copyright in an
article to a journal. Normally all that is assigned is the right of
first publication in a journal.

Is the situation really so different in the case of scientific journals?

Contributory infringement is not likely to apply to a publication of
a copy of the work before the assignment of the copyright. In fact,
that could not possibly be a contributory infringement. If you publish
a copy of a copyrighted work that may be infringement; it isn't
contributory infringement. But anyway if the author publishes a copy of
the copyrighted work before he assigns the copyright, that publication is
not an infringement.

Again, in the case of the publication of preprints, since preprints are
published before the assignment of copyright, that publication cannot be
a violation of the ``transfer agreement,'' whatever that is.

The impression that the owner of the Internet server may be liable is
perhaps based on the safe-harbour provisions of the Digital Millenium
Copyright Act, which says that the owner of the server will not be
liable if he removes the copy after being informed it is claimed to be
a violation of copyright, but the safe-harbour provisions do not say
that the server owner is liable if he does not remove the copy. That
me be a subtle distinction, but it is very important. Especially in
the case of pre-prints, which are not an infringement of the assignee's
interest in the copyright, because they were published before the

Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
        NOTE: no longer exists
Received on Wed Jan 03 2001 - 19:17:43 GMT

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