The first step of the 'three step test' is important – the use has to be a 'special case' (i.e. not systematic)

 

Sally

 

 

Sally Morris

Partner, Morris Associates - Publishing Consultancy

 

South House, The Street

Clapham, Worthing, West Sussex BN13 3UU, UK

 

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From: American Scientist Open Access Forum [mailto:[log in to unmask]] On Behalf Of Arthur Sale
Sent: 15 February 2009 01:00
To: [log in to unmask]
Subject: Re: Fair-Use/Schmair-Use...

 

I agree with Stevan. A simple reading of copyright law in some countries does imply that if you sign away copyright you cannot make copies. But there are many exceptions, including fair use. And the law is an ass. In most cases it has not caught up with the reality of IT and in any case it must be read in conjunction with other law.

 

In practice, when I submit a paper to a journal there will be a copy on my laptop, my home computer and my work PC (not to mention a possible copy on a memory stick). The copy in a repository follows soon after, to satisfy the record-keeping requirements. In the ensuing days and weeks, other copies are directly created by the automated back-up process at university (including the repository) and stored somewhere. Multiple copies are made en route to the publisher and back.

 

Only an insane publisher would contest any of this. They would expect me to keep my article safe and backed up, just in case. They would also know that any court would throw a case contesting normal record-keeping and ICT practice out of the window. The Australian Copyright Act is pretty up to date in this respect and covers this, as in the extract below and elsewhere. The red is my annotation. Note that this is Section 200 of the Copyright Act!

 

I write this at the risk of suggesting that more  angels can dance on the head of a pin than is commonly thought of. We need to do what is sensible and wait for the law to catch up, as it will eventually.

 

Arthur Sale

COPYRIGHT ACT 1968 - SECT 200AB

Use of works and other subject-matter for certain purposes

             (1)  The copyright in a work or other subject‑matter is not infringed by a use of the work or other subject‑matter if all the following conditions exist:

                     (a)  the circumstances of the use (including those described in paragraphs (b), (c) and (d)) amount to a special case;

                     (b)  the use is covered by subsection (2), (3) or (4);

                     (c)  the use does not conflict with a normal exploitation of the work or other subject‑matter;

                     (d)  the use does not unreasonably prejudice the legitimate interests of the owner of the copyright.

Use by body administering library or archives

             (2)  This subsection covers a use that:

                     (a)  is made by or on behalf of the body administering a library or archives; and

                     (b)  is made for the purpose of maintaining or operating the library or archives (including operating the library or archives to provide services of a kind usually provided by a library or archives); and

                     (c)  is not made partly for the purpose of the body obtaining a commercial advantage or profit.

Use by body administering educational institution

             (3)  This subsection covers a use that:

                     (a)  is made by or on behalf of a body administering an educational institution; and

                     (b)  is made for the purpose of giving educational instruction; and

                     (c)  is not made partly for the purpose of the body obtaining a commercial advantage or profit.

 

 

From: American Scientist Open Access Forum [mailto:[log in to unmask]] On Behalf Of Stevan Harnad
Sent: Saturday, 14 February 2009 10:31 PM
To: [log in to unmask]
Subject: Re: [AMERICAN-SCIENTIST-OPEN-ACCESS-FORUM] Fair-Use/Schmair-Use...

 

On Sat, Feb 14, 2009 at 3:48 AM, Charles Oppenheim <[log in to unmask]> wrote (in JISC-REPOSITORIES):

 

Arthur [Sale] is wrong on his final point.  When an author assigns copyright to a publisher, the author gives away all rights.  It is equivalent to selling your house, your car or anything else.  Once you've sold it, you've no right to enjoy it's use any more, even though you were the previous owner.

So when an author assigns copyright to a publisher, he or she has no rights to keep a back up copy, store it in a repository, etc., UNLESS the publisher graciously gives permission for the author to do so.  But what the publisher cannot do is demand deletion, etc., of earlier drafts of the manuscript, because the author has only assigned the final accepted version to the publisher.

 

With all due respect, if this were true, then the author could not keep and store a paper copy of the final draft of his book in his attic either (or, for that matter, his author's copy of the published book). And, as we all know, "earlier drafts" are a slippery slope. The "penult," which is the refereed draft minus the copy-editing is an earlier draft. So is an author's draft incorporating corrections.

 

No, the new medium has features that cannot be coherently, let alone confidently described, let alone prescribed and proscribed, in this papyrocentric way. The self-archiving computer scientist (since the 80's) and physicist (since the '90s) authors had it right: "Don't ask, Don't Tell, Don't Fret, Just Do." Otherwise you will elicit a welter of inconsistent, and in many cases incoherent opinion and counter-opinion whilst you languish in a chronic state of Zeno's Paralysis (as 85% of us foolishly persist in doing, for nigh on two decades now).

 

And while I'm in the pulpit, let me also point out that the main reason for deposit mandates is not to force research authors to do something they don't really want to do (a few extra bureaucratic keystrokes, as some of the stalwart defenders of "academic freedom" seem to imagine), for they all want to maximise the usage and impact of their research (as a half-century of keystrokes fulfilling reprint-requests proves): It is to free these special authors from the irrational inhibitions that keep them in their state of Zeno's Paralysis.

 

Apologies for this interruption. Please return to your solemn discussion of angels, heads and pins...

 

Stevan Harnad

Charles

On Sat, 14 Feb 2009 15:01:59 +1100
 Arthur Sale <[log in to unmask]> wrote:

Talat



Let me assure you that you should credit that a court would accept a case
that repositories fulfil other functions. Indeed in Australia we could argue
that they are required by the Federal Government for the purpose of
institutional publication reporting and research evaluation. Tasmanian law
requires the university to keep records for long-term preservation under the
Archives Act and so do most States.



The other point you miss is that publishers have no rights to prohibit a
restricted copy being mounted in a repository. If an author chooses to keep
a copy of his or her article in one computer system or another (or is
required to place a copy in a particular one) is of no concern whatsoever to
a publisher. They might as well demand that the author delete the manuscript
from their personal PC once it has been published! Indeed my departmental
backup system makes regular copies from my PC somewhere and I don't bother
enquiring where, nor does any publisher of my work. Neither do they demand
that a particular filing cabinet be used for any paper drafts. None of this
is of any concern to a publisher.



You and I have had this argument before and you persist in this view, but it
cannot go unchallenged if you keep making it. It does not stand up to
examination.



Arthur Sale

University of Tasmania