Herman J. Woltring emailed during July 1989 (
WWW.Albany.edu/~scifraud/scilog/scilog89.html
):
|-------------------------------------------------------------------------------------|
|"SCIENTIFIC ETHICS AND COPYRIGHT / DROIT D'AUTEUR |
| |
|In a recent Swiss article "Fundamental Aspects of the Legal Protection of |
|Scientific Achievements", Martina Altenpohl of Zuerich, Switzerland, author |
|of a 1987 dissertation "Author's Right Protection of Research Findings" |
|discusses and criticizes a recent verdict by the Swiss Supreme Court that |
|breach of (implied) confidence by a scientific reviewer did not constitute |
|infringement of the author's right. |
| |
|The facts of the case as described by Altenpohl are as follows: Publisher Z |
|sent MSc and PhD manuscripts on the "Life and Work of the First Female Child |
|Psychoanalytic, by Hug-Hellmuth" for review to psychologist mrs Y. Subsequent- |
|ly, Mrs Y presented a lecture at a psychoanalytical seminar on "H. Hug-Helmuth |
|and W. Schmidt" which was taped and stored in the Seminar. The subsequent com- |
|plaint of X against Y to obtain an injunction against the unreferenced copying |
|of quotations and of self-standing research achievements from her unpublished |
|manuscripts, and to obtain compensation and damages were dismissed by the Higher |
|Court of Zuerich and by the Swiss Supreme Court ("Bundesgericht"). |
| |
|In my opinion, the facts of the case do not constitute "fair use" in the sense |
|of Section 107 US Copyright Act or of "fair dealing for review, criticism, or |
|news reporting" in the Anglosaxon or Canadian Copyright sense, both from an |
|exploitation and personality point of view. However, the verdict is significant |
|in that it "preserves and protects" scientific exemptions on "author's right", |
|even though the continental-european "droit d'auteur" approach to copyright puts |
|strong emphasis on the personality and reputation of the natural author in com- |
|parison to Anglo-American "copyright". In fact, the verdict leaves the boarder- |
|line between science and technology to be dealt with by patent law and unfair |
|competition law, while the paternity and breach of confidence issues are left to |
|be dealt with within the scientific community and not in a court of law. |
| |
|Since Switzerland hosts the Berne Copyright Convention to which the USA was |
|admitted earlier this year, the verdict seems of interest to all copyright |
|countries, whether biased to the human rights orientation of "droit d'auteur" |
|or to the more pragmatic, economically oriented Anglo-American approach. Un- |
|like the Universal Copyright Convention, the Berne Copyright Convention recog- |
|nizes moral rights as were largely at stake in the Swiss case. Possibly, Mr |
|Kossland's view on authorship in Science (see Al Higgins' "An Impervious Per- |
|spective" of last Monday) was motivated by a UCC rather than by a BC approach |
|on Copyright. Nevertheless, as Editor for Science, Mr Kossland[Koshland] should have |
|realized that paternity of a scientific writing is as important as is anonimity |
|in industrial products: scientific writers come out under their own name and |
|are rewarded or punished as such, while public praise and punishment for indus- |
|trial products appartain (usually) to the legal producers. On June 27, a Copy- |
|right revision was accepted by the Dutch Senate where the right to claim |
|paternity ("unless this would be unreasonable") was explicitly guaranteed. |
| |
|Furthermore, the Swiss verdict did not accept proposals from Altenpohl and many |
|others in the copyright field to extent protection from mere form or expression |
|to the basic ideas or contents of a copyright work, while it strengthened the |
|forms/expression requirements. This is an important result since otherwise the |
|use of all kinds of fundamental ideas as published in the academic (or professi- |
|onal) litterature might be protected and could not be freely build upon, criti- |
|cized, or rejected. In the software protection field, however, this is precise- |
|ly what is being attempted in many commercially oriented copyright proposals: |
|unauthorized copying for "research, review, criticism or news reporting" is |
|threathened with being outlawed in order to protect the investments of the |
|producer, whether the copying is for private/commercial or for public/scientific |
|purposes. It seems that such a unilateral scheme is not in the interest of |
|public welfare and of competition-oriented economies. If copying for research |
|and review of hardware objects is allowed and standard practice in industry and |
|academia, why should this be forbidden in the software field, especially since |
|a substantial amount of "non public-domain" software has been published in the |
|scientific litterature? |
| |
|Herman J. Woltring |
|Research Assiciate in Biomedical and Health Technology at |
|Eindhoven University of Technology |
|Brussellaan 29, NL-5628 TB EINDHOVEN, The Netherlands |
| |
[log in to unmask], [log in to unmask] |
| |
| |
|REFERENCES: |
| |
|Martina Altenpohl, Grundsaetzliche Aspekte der Rechtsschutz wissenschaftlicher |
|Leistungsergebnisse. Schweizerische Aktiengesellschaft 61(1989)1, 16-21. |
| |
|Martina Altenpohl, Der urheberrechtliche Schutz von Forschungsresultaten. |
|Staempfli & Cie, Berne 1987." |
|-------------------------------------------------------------------------------------|
If unreasonable plagiarism is forbidden in the Netherlands, then why
was René F.W. Diekstra treated leniently?
Should it be tolerated that researchers illegally copy software
instead of paying like everyone else? I have used research funds to
acquire software. Instead, plagiarising software would have
been unjustified. Techniques intended to counter piracy are used for
hardware such as field-programmable gate arrays. The hardware
manufacturer Xilinx owned a patent which complicated rivals'
products. I had seen non-electronic toys like Barbie dolls which had
copyright warnings on them.
Regards,
Paul Colin Gloster
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