[GOAL] Re: A reply to Professor Carroll
Thanks for drawing my attention to this interesting paper, Marc. I think it clearly shows that universities have often held back from claiming rights over academic writings based on pragmatic reflections - (universities tend to be averse to litigation, especially against their own faculty members.They are loath to disturb institutional traditions and spark uprisings on their campuses and in their communities). This was my main point - and one of Prof Oppenheim's. Maybe I was too affirmative in saying that most academic work is work for hire - as the Strauss paper shows, this is being disputed by a number of actors in a number of ways. But, as you say, without a definitive conclusion.. Best, Chris Zielinski On 11 February 2014 22:21, Couture Marc marc.cout...@teluq.ca wrote: Chris Zielinski wrote: Let's not forget that it is precisely such pragmatism that stops universities from claiming the copyrights to all published academic work as work for hire, which of course most of it is... Well, I wouldn't be so affirmative. There is also something called the academic exception, according to which the work-for-hire doctrine may not apply in the academe. Much has been written in the past decade about this issue, with no definitive conclusion; see, for instance, this recent paper: Strauss, N. S. (2011). Anything but academic: How copyright's work-for-hire doctrine affects professors, graduate students, and K-12 teachers in the information age. *Richmond Journal of Law Technology, 18*(1). http://jolt.richmond.edu/v18i1/article4.pdf Marc Couture ___ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal ___ GOAL mailing list GOAL@eprints.org http://mailman.ecs.soton.ac.uk/mailman/listinfo/goal
[GOAL] Re: A reply to Professor Carroll
...@wcl.american.edu To: Global Open Access List (Successor of AmSci) goal@eprints.org Cc: charlesoppenheim c.oppenh...@btinternet.com Sent: Friday, 7 February 2014, 21:42 Subject: Re: [GOAL] A reply to Professor Carroll I'm afraid there's an option (d), which is that I did read Professor Oppenheim's post, and I think it misstates the legal situation in both the United States and the United Kingdom when an author assigns the exclusive rights under copyright in the final version of an article. Specifically, the statement that an assignment of rights in the final version of an article leaves the author with rights in the draft, i.e., This crucial difference means I am free to do anything I like with D, including posting it on an OA repository. I am not aware of any legal authority that would support this understanding of the situation. I take no pleasure in pointing this out, since Professor Oppenheim has done a lot of good work on behalf of OA. But, it's not helpful to understate the legal consequences of a copyright assignment or the grant of an exclusive license. I realize that Professor Oppenheim did not say that a publisher could do as I suggest, and I apologize for using a common form of argument among attorneys to point out the consequences of one's statement of the law. Let me rephrase to say, if Professor Oppenheim's statement of the law were correct . . . . With respect to Kevin Smith's and Dave Hansen's posts, I think we're all roughly in agreement, but we're deeper in the weeds than we need to be. Dave, this really is about the law and not about contract interpretation because we are talking about the legal consequences of a standard transfer of the exclusive right of reproduction, which is ubiquitous in publication agreements that require either an assignment or an exclusive license. See, for example, the IEEE agreement as an example. http://www.ieee.org/documents/ieeecopyrightform.pdf But, let's assume for a moment that the publication agreement assigns only the exclusive rights in the final version of the article. The fundamental misunderstanding is about what the author has given up. The author initially owns the exclusive rights under copyright in the work of authorship, which is the author's original expression contained in the final article. This means the author has the legal authority to exclude others from making exact copies or copies of the work that are substantially similar to the original. When the author transfers this exclusive right to the publisher, the author now has the legal status of any other member of the public with respect to the final version of the article. [Let's leave aside for the moment any provisions of the contract that may give the author rights to post a draft online.] Assuming that fair use, fair dealing or other user rights do not apply, posting a substantially similar version of the final article online would infringe the publisher's right of reproduction regardless of whether the person posting is the author or any other member of the public and whether the substantially similar version is a prior draft or a variation created after publication. That's what it means to give up your rights under copyright, and that's why the record label was able to make a claim against John Fogerty (referenced in my 2006 post) for allegedly infringing the rights in a song that he had previously written but to which he no longer owned the copyright. It is simply not the law that an author who has transferred the exclusive rights under copyright in the final version of an article still owns some residual rights in a prior draft that would allow the author to post it online if the draft and the final version are substantially similar to each other. And, the courts have defined the zone of substantial similarity to be fairly broad. Even if only half of the draft corresponds word-for-word with the final version, that would be substantially similar and could not be posted. I imagine this thread will continue, but I don't expect to contribute further. Best, Mike Michael W. Carroll Professor of Law and Director, Program on Information Justice and Intellectual Property American University Washington College of Law 4801 Massachusetts Avenue, NW Washington, D.C. 20016 Office: 202.274.4047 Faculty page: http://www.wcl.american.edu/faculty/mcarroll/ Blog: http://carrollogos.blogspot.com Creative Commons: http://creativecommons.org Public Library of Science: http://www.plos.org From: CHARLES OPPENHEIM c.oppenh...@btinternet.com Reply-To: Global Open Access List (Successor of AmSci) goal@eprints.org Date: Thursday, February 6, 2014 4:24 AM To: goal@eprints.org goal@eprints.org Cc: charlesoppenheim c.oppenh...@btinternet.com Subject: [GOAL] A reply to Professor Carroll Professor Carroll has completely misrepresented me. As I made
[GOAL] Re: A reply to Professor Carroll
The post by Dave Hansen that Michael Carroll mentions can be read here: http://listserv.crl.edu/wa.exe?A2=LIBLICENSE-L;e0242f5.1402 From: goal-boun...@eprints.org [mailto:goal-boun...@eprints.org] On Behalf Of Michael Carroll Sent: 07 February 2014 21:43 To: Global Open Access List (Successor of AmSci) Cc: charlesoppenheim Subject: [GOAL] Re: A reply to Professor Carroll I'm afraid there's an option (d), which is that I did read Professor Oppenheim's post, and I think it misstates the legal situation in both the United States and the United Kingdom when an author assigns the exclusive rights under copyright in the final version of an article. Specifically, the statement that an assignment of rights in the final version of an article leaves the author with rights in the draft, i.e., This crucial difference means I am free to do anything I like with D, including posting it on an OA repository. I am not aware of any legal authority that would support this understanding of the situation. I take no pleasure in pointing this out, since Professor Oppenheim has done a lot of good work on behalf of OA. But, it's not helpful to understate the legal consequences of a copyright assignment or the grant of an exclusive license. I realize that Professor Oppenheim did not say that a publisher could do as I suggest, and I apologize for using a common form of argument among attorneys to point out the consequences of one's statement of the law. Let me rephrase to say, if Professor Oppenheim's statement of the law were correct . . . . With respect to Kevin Smith's and Dave Hansen's posts, I think we're all roughly in agreement, but we're deeper in the weeds than we need to be. Dave, this really is about the law and not about contract interpretation because we are talking about the legal consequences of a standard transfer of the exclusive right of reproduction, which is ubiquitous in publication agreements that require either an assignment or an exclusive license. See, for example, the IEEE agreement as an example. http://www.ieee.org/documents/ieeecopyrightform.pdf http://www.ieee.org/documents/ieeecopyrightform.pdf But, let's assume for a moment that the publication agreement assigns only the exclusive rights in the final version of the article. The fundamental misunderstanding is about what the author has given up. The author initially owns the exclusive rights under copyright in the work of authorship, which is the author's original expression contained in the final article. This means the author has the legal authority to exclude others from making exact copies or copies of the work that are substantially similar to the original. When the author transfers this exclusive right to the publisher, the author now has the legal status of any other member of the public with respect to the final version of the article. [Let's leave aside for the moment any provisions of the contract that may give the author rights to post a draft online.] Assuming that fair use, fair dealing or other user rights do not apply, posting a substantially similar version of the final article online would infringe the publisher's right of reproduction regardless of whether the person posting is the author or any other member of the public and whether the substantially similar version is a prior draft or a variation created after publication. That's what it means to give up your rights under copyright, and that's why the record label was able to make a claim against John Fogerty (referenced in my 2006 post) for allegedly infringing the rights in a song that he had previously written but to which he no longer owned the copyright. It is simply not the law that an author who has transferred the exclusive rights under copyright in the final version of an article still owns some residual rights in a prior draft that would allow the author to post it online if the draft and the final version are substantially similar to each other. And, the courts have defined the zone of substantial similarity to be fairly broad. Even if only half of the draft corresponds word-for-word with the final version, that would be substantially similar and could not be posted. I imagine this thread will continue, but I don't expect to contribute further. Best, Mike Michael W. Carroll Professor of Law and Director, Program on Information Justice and Intellectual Property American University Washington College of Law 4801 Massachusetts Avenue, NW Washington, D.C. 20016 Office: 202.274.4047 Faculty page: http://www.wcl.american.edu/faculty/mcarroll http://www.wcl.american.edu/faculty/mcarroll/ Blog: http://carrollogos.blogspot.com http://carrollogos.blogspot.com Creative Commons: http://creativecommons.org http://creativecommons.org Public Library of Science: http://www.plos.org http://www.plos.org From: CHARLES OPPENHEIM mailto:c.oppenh...@btinternet.com c.oppenh...@btinternet.com Reply-To: Global Open Access
[GOAL] Re: A reply to Professor Carroll
Professor Carroll has withdrawn his misinterpretation of what I said. I thank him for that. He argues that if, say, 50% of words in a Final Article (F) also appear in a draft (D), then assignment has been given in D as well to the publisher. So how come so many theses are available in OA repositories when I suspect in many cases, at least 50% of the words in an article based on a thesis also appear in the thesis? This says institutions that post theses into a repository are infringing the publisher's rights. Does Prof Carroll agree that such theses should be withdrawn because of the risk of an infringement action? We differ to a degree only. In my view, if the peer reviewers request only trivial changes (The correct year for Smith's reference in 2005, not 2006), then D is sufficiently similar to F to not enjoy separate copyright owned by the author. But if it has major changes (you have completely missed Jones' major work on the topic and need to refer to it at length in your introduction, you must explain how you chose the sample, you must justify in rigorous way why you think the correlation means a causal relationship - or else withdraw that statement, then F is sufficiently different from D to justify my position (and indeed, explains why some peer reviewers are arguing that inn such cases they should be identified as joint authors of F, but of course they wouldn't dream of arguing that they are joint authors of D). But what really disappoints me about this debate is the failure to address the pragmatics, which is what I am primarily interested in: 1. No publisher has ever claimed that the Harnad-Oppenheim (HO) solution is illegal. Instead, they have (rightly) said it is impractical - which, by implication, means they accept it may well be legal. Publishers have access to some pretty good IP lawyers….. 2. I don't recommend the HO solution for the reasons publishers gave. I regard the solution as a desperate poor quality last resort. There are much better ways to ensure OA thrives in the scholarly environment. 3. I hope Prof Carroll agrees with me that authors are foolish to assign (or sign an exclusive licence) copyright to publishers and that they should adopt one of the tactics I mentioned, or Mike Taylor's idea of putting F into an OA repository and then telling the publisher they cannot sign the assignment/exclusive licence because F is already out there. Like Prof Carroll, I don't expect to add further this debate. Professor Charles Oppenheim From: Michael Carroll mcarr...@wcl.american.edu To: Global Open Access List (Successor of AmSci) goal@eprints.org Cc: charlesoppenheim c.oppenh...@btinternet.com Sent: Friday, 7 February 2014, 21:42 Subject: Re: [GOAL] A reply to Professor Carroll I'm afraid there's an option (d), which is that I did read Professor Oppenheim's post, and I think it misstates the legal situation in both the United States and the United Kingdom when an author assigns the exclusive rights under copyright in the final version of an article. Specifically, the statement that an assignment of rights in the final version of an article leaves the author with rights in the draft, i.e., This crucial difference means I am free to do anything I like with D, including posting it on an OA repository. I am not aware of any legal authority that would support this understanding of the situation. I take no pleasure in pointing this out, since Professor Oppenheim has done a lot of good work on behalf of OA. But, it's not helpful to understate the legal consequences of a copyright assignment or the grant of an exclusive license. I realize that Professor Oppenheim did not say that a publisher could do as I suggest, and I apologize for using a common form of argument among attorneys to point out the consequences of one's statement of the law. Let me rephrase to say, if Professor Oppenheim's statement of the law were correct . . . . With respect to Kevin Smith's and Dave Hansen's posts, I think we're all roughly in agreement, but we're deeper in the weeds than we need to be. Dave, this really is about the law and not about contract interpretation because we are talking about the legal consequences of a standard transfer of the exclusive right of reproduction, which is ubiquitous in publication agreements that require either an assignment or an exclusive license. See, for example, the IEEE agreement as an example. http://www.ieee.org/documents/ieeecopyrightform.pdf But, let's assume for a moment that the publication agreement assigns only the exclusive rights in the final version of the article. The fundamental misunderstanding is about what the author has given up. The author initially owns the exclusive rights under copyright in the work of authorship, which is the author's original expression contained in the final article. This means the author has the legal authority
[GOAL] Re: A reply to Professor Carroll
It would be understandable, yet a pity if authorities like Charles Oppenheim
and Michael Carroll were to stop adding to this debate, since we learn a lot
from their exchanges. Tant pis.
Charles uses the word 'pragmatics' in his response. Pragmatism is an important
notion here. I think that legally, publishers would indeed have the right to
demand that theses that are published and for which the author has transferred
copyright to a publisher and the publisher hasn't explicitly allowed that the
informal copy be made available on an open web site, be taken down. So yes,
there is a risk of infringement action. Given that this sort of copyright
infringement by authors is mostly a civil and not a criminal matter (as long as
it is not done for purposes of commercial advantage or private financial gain),
only the copyright holder can take legal action. Correct me please if I'm
wrong. That means that it is up to the publisher to take that legal action. But
publishers are pragmatic. Though they could legally require that informal
copies of the theses and journal articles that they published be removed from
public sites, they know that they will just harvest opprobrium and extremely
negative PR, and gain next to nothing. They are not stupid. So they (at least
some of them) just require the officially published version ('F' in Charles'
lexicon) to be taken down. It may well be that from this
'pragma-as-opposed-to-dogma' attitude on the part of the publishers the notion
arose that earlier, informal copies ('D' in Charles' lexicon) would not be
covered by copyright.
The conclusion that I drew quite some time ago didn't have to be changed as a
result of these recent discussions, I feel. Namely that in order to sustain a
robust system of scholarly (particularly journal) publishing that's fit for
purpose, monetising copyright is the wrong method.
Jan Velterop
On 8 Feb 2014, at 14:05, CHARLES OPPENHEIM c.oppenh...@btinternet.com wrote:
Professor Carroll has withdrawn his misinterpretation of what I said. I thank
him for that.
He argues that if, say, 50% of words in a Final Article (F) also appear in a
draft (D), then assignment has been given in D as well to the publisher. So
how come so many theses are available in OA repositories when I suspect in
many cases, at least 50% of the words in an article based on a thesis also
appear in the thesis? This says institutions that post theses into a
repository are infringing the publisher's rights. Does Prof Carroll agree
that such theses should be withdrawn because of the risk of an infringement
action?
We differ to a degree only. In my view, if the peer reviewers request only
trivial changes (The correct year for Smith's reference in 2005, not 2006),
then D is sufficiently similar to F to not enjoy separate copyright owned by
the author. But if it has major changes (you have completely missed Jones'
major work on the topic and need to refer to it at length in your
introduction, you must explain how you chose the sample, you must justify
in rigorous way why you think the correlation means a causal relationship -
or else withdraw that statement, then F is sufficiently different from D to
justify my position (and indeed, explains why some peer reviewers are arguing
that inn such cases they should be identified as joint authors of F, but of
course they wouldn't dream of arguing that they are joint authors of D).
But what really disappoints me about this debate is the failure to address
the pragmatics, which is what I am primarily interested in:
1. No publisher has ever claimed that the Harnad-Oppenheim (HO) solution is
illegal. Instead, they have (rightly) said it is impractical - which, by
implication, means they accept it may well be legal. Publishers have access
to some pretty good IP lawyers…..
2. I don't recommend the HO solution for the reasons publishers gave. I
regard the solution as a desperate poor quality last resort. There are much
better ways to ensure OA thrives in the scholarly environment.
3. I hope Prof Carroll agrees with me that authors are foolish to assign (or
sign an exclusive licence) copyright to publishers and that they should adopt
one of the tactics I mentioned, or Mike Taylor's idea of putting F into an OA
repository and then telling the publisher they cannot sign the
assignment/exclusive licence because F is already out there.
Like Prof Carroll, I don't expect to add further this debate.
Professor Charles Oppenheim
From: Michael Carroll mcarr...@wcl.american.edu
To: Global Open Access List (Successor of AmSci) goal@eprints.org
Cc: charlesoppenheim c.oppenh...@btinternet.com
Sent: Friday, 7 February 2014, 21:42
Subject: Re: [GOAL] A reply to Professor Carroll
I'm afraid there's an option (d), which is that I did read Professor
Oppenheim's post, and I think it misstates the legal situation in both the
United States
[GOAL] Re: A reply to Professor Carroll
I'm afraid there's an option (d), which is that I did read Professor Oppenheim's post, and I think it misstates the legal situation in both the United States and the United Kingdom when an author assigns the exclusive rights under copyright in the final version of an article. Specifically, the statement that an assignment of rights in the final version of an article leaves the author with rights in the draft, i.e., This crucial difference means I am free to do anything I like with D, including posting it on an OA repository. I am not aware of any legal authority that would support this understanding of the situation. I take no pleasure in pointing this out, since Professor Oppenheim has done a lot of good work on behalf of OA. But, it's not helpful to understate the legal consequences of a copyright assignment or the grant of an exclusive license. I realize that Professor Oppenheim did not say that a publisher could do as I suggest, and I apologize for using a common form of argument among attorneys to point out the consequences of one's statement of the law. Let me rephrase to say, if Professor Oppenheim's statement of the law were correct . . . . With respect to Kevin Smith's and Dave Hansen's posts, I think we're all roughly in agreement, but we're deeper in the weeds than we need to be. Dave, this really is about the law and not about contract interpretation because we are talking about the legal consequences of a standard transfer of the exclusive right of reproduction, which is ubiquitous in publication agreements that require either an assignment or an exclusive license. See, for example, the IEEE agreement as an example. http://www.ieee.org/documents/ieeecopyrightform.pdf But, let's assume for a moment that the publication agreement assigns only the exclusive rights in the final version of the article. The fundamental misunderstanding is about what the author has given up. The author initially owns the exclusive rights under copyright in the work of authorship, which is the author's original expression contained in the final article. This means the author has the legal authority to exclude others from making exact copies or copies of the work that are substantially similar to the original. When the author transfers this exclusive right to the publisher, the author now has the legal status of any other member of the public with respect to the final version of the article. [Let's leave aside for the moment any provisions of the contract that may give the author rights to post a draft online.] Assuming that fair use, fair dealing or other user rights do not apply, posting a substantially similar version of the final article online would infringe the publisher's right of reproduction regardless of whether the person posting is the author or any other member of the public and whether the substantially similar version is a prior draft or a variation created after publication. That's what it means to give up your rights under copyright, and that's why the record label was able to make a claim against John Fogerty (referenced in my 2006 post) for allegedly infringing the rights in a song that he had previously written but to which he no longer owned the copyright. It is simply not the law that an author who has transferred the exclusive rights under copyright in the final version of an article still owns some residual rights in a prior draft that would allow the author to post it online if the draft and the final version are substantially similar to each other. And, the courts have defined the zone of substantial similarity to be fairly broad. Even if only half of the draft corresponds word-for-word with the final version, that would be substantially similar and could not be posted. I imagine this thread will continue, but I don't expect to contribute further. Best, Mike Michael W. Carroll Professor of Law and Director, Program on Information Justice and Intellectual Property American University Washington College of Law 4801 Massachusetts Avenue, NW Washington, D.C. 20016 Office: 202.274.4047 Faculty page: http://www.wcl.american.edu/faculty/mcarroll/ Blog: http://carrollogos.blogspot.com Creative Commons: http://creativecommons.org Public Library of Science: http://www.plos.org From: CHARLES OPPENHEIM c.oppenh...@btinternet.com Reply-To: Global Open Access List (Successor of AmSci) goal@eprints.org Date: Thursday, February 6, 2014 4:24 AM To: goal@eprints.org goal@eprints.org Cc: charlesoppenheim c.oppenh...@btinternet.com Subject: [GOAL] A reply to Professor Carroll Professor Carroll has completely misrepresented me. As I made clear in my point 1, no-one can adapt or amend F without the publisher's permission. His misrepresentation must have been as a result of one of three things: (a) Prof Carroll never read my piece; (b) he read it and deliberately misconstrued what I wrote; or (c) he read it and did not understand what I wrote. I was totally clear that the author has
