Re: "Authors Re-using Their Own Work"

From: C.Oppenheim <C.Oppenheim_at_LBORO.AC.UK>
Date: Tue, 4 Aug 2009 07:53:27 +0100

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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 - 11:23:37 BST

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