RE: author's rights/Uncover case

["Hamaker, Chuck" <cahamake@email.uncc.edu>]

I realize the main concern at the moment seems to derive from freelance
authors. But the author's copyright issue is a bit more complex than that.

Secondary or subsidiary "one up" uses all seem to me to be a concern. UMI
and IAC and EbscoHost and even the venerable LexisNexis, all assume the
right to distribute individual articles electronically derived from
contracts with the original publisher, and as they are piecemeal delivery,
they are minimally tied to the "collective" publication where the article
originally appeared.  In some electronic aggregator sources, it's fairly
difficult to find the "original" issue of the journal represented.

But beyond even that, a study we did at LSU a few years ago looked at (but
we did not report it in the literature) the actual copyright statements on
articles in journals. In some fields, the preponderance of the articles
did NOT claim copyright for the publisher or the journal.

In my own experience, there are journals that appear to "claim" full
copyright (in the prefatory material etc.) but in fact do not have all
rights.

I personally routinely retain certain rights on articles I've written, no
matter who the publisher is. There is never any indication of that on the
printed article, and I have to wonder if the publishers even know which
rights they really have if the author has modified the copyright form.

Some publications do not attempt to get all rights from the author. In my
field, again, American Libraries routinely contracts for only first
publication rights. For a recent article in College and Research Libraries
no contract was signed (and that article, with the authors' implicit
permission, and delight, was translated into Chinese).

I probably don't even know for certain which articles I've NOT signed over
which rights to, on an article by article basis.

For at least one publisher, whose copyright form states they won't publish
an article if the copyright form is altered in any way, I routinely alter
the form, and the articles get published anyway. Is the copyright form
void with alteration??? Interesting question.

Many of the articles written by one of the owners of this list are posted
on the web, I have to assume that she has retained certain rights as well.

And it seems to me ridiculous for academic authors not to retain the right
to redistribute, whether to colleagues or to students, copies, whether in
paper or electronically, their own works. That doesn't mean the
redistribution right is exclusively the author's, but in the networked
world, it seems irresponsible to assume a journal with 600 subscriptions
can take the place of WWW exposure for the ideas in the article.

So the "author's rights" picture may be much different when you get down
to investigating (if it's even possible to do) than expected.

My understanding is that in order to "sue" however, I would have to
register the copyright on the individual article with the Copyright Office
on any article I wanted to pursue my "rights" on.

Although rights exist from creation, can they be enforced absent the
registration? ( I think that is why one of the authors was excluded from
the UnCover summary judgment--no registration on the article in question)
And if rights to compensation, for example, have to be pursued and proven
on an article by article basis, this could snarl the courts like no other
area. What DID the original contract say? Or does that even matter.

It looked like the judge in making a summary judgment in the UnCover case
ignored, or did not question what the contract or copyright conveyance
form to the publisher's in question indicated. (I may have missed that,
but was looking for it) Is it irrelevant??

In the meantime what happens to the principle of copyright serving the
common good, the advancement in knowledge, commerce, the arts, etc. if
each author must be queried for permission to redistribute? Can an ASCAP
system work, and how quickly??

Nothing is ever as simple as we think it is...

chuck Hamaker
University of North Carolina, Charlotte



> -----Original Message-----
> From:	Judy Luther [SMTP:jluther@earthlink.net]
> Sent:	Tuesday, October 27, 1998 7:48 PM
> To:	'liblicense-l@lists.yale.edu'
> Subject:	RE: author's rights
> 
> Bernie:
> 
> You raise an excellent point about author's retaining the copyright which
> is distinct from the issue of their work being made available in
> electronic form.  I found Barbara Quint's article in Information Today
> helpful in distinguishing the two issues for me.
> 
> Author's retained copyright.
> 
> These are free lance authors who claim they did not grant copyright to the
> publisher and therefore are not being fairly compensated.  I find it
> interesting that it was the authors who sued CARL and not the publishers
> who are compensated by the CCC.  I am unclear as to the role of The
> National Writers Union author's registry and the CCC in providing an
> efficient mechanism to support freelance authors.  Perhaps another
> contributor to this list can enlighten us.
> 
> Retained in electronic form
> 
> Efficiently storing the article in electronic form for resale once it is
> scanned, is a peripheral issue for CARL in this case.  I believe there are
> legal constraints around storing (electronic) copies for commercial use.  
> A recent case, Tasini v. NY Times, is being appealed since the courts
> decided that the NY Times as the publisher had the right to include the
> authors works in an electronic version in addition to a print version.
> This relates to the publisher's negotiation to produce an author's work in
> multiple formats.
> 
> If the CARL case stands, I would expect it to impact both the publishers
> who negotiate authors rights and the aggregators (such as IAC and UMI) who
> provide article level access.  Increased electronic access to the contents
> of journals is driving the consumption at the article level.  Given the
> demand, I would expect that a system will be developed, adapted or
> expanded to efficiently handle authors' compensation.  The question is -
> what happens while this is being resolved.
> 
> Judy
> 
> Judy Luther, MLS, MBA
> Informed Strategies 					610-645-7546 tel
> 102 West Montgomery Ave. #B				610-645-5251 fax
> Ardmore PA  19003
> jluther@earthlink.net