Re: copyright issues of scanned articles

[Ann Okerson <aokerson@pantheon.yale.edu>]

In further response to Sally Morris's message about who needs to give
digisation permissions:

My disagreement with the AND, which I saw and appreciated, still stands.
The publishers, at least here in the USA, do not necessarily have all the
rights for subsequent uses or distributions or a work, and where they do
not, their permission for the content is not required. Here are some
instances in which the publisher's permission is not the permission that
is needed:

(1) An author may have licensed the publisher to produce one particular
type of rendering of the content, as for example, the journal article. In
such a case, the author owns the content.

(2) The author may have licensed the publisher to produce that journal
article and also distribute it in the various ways his normal business
requires (i.e., via UMI microfilm, various doc delivery services, CCC,
etc.).  In such a case, the author would be contacted for permssions
other than those that are part of the publisher's normal business
arrangements.

(3) The author, in the USA, may be an employee of the federal government
who did his research on government time and money.  In the US, such works
are in the public domain and may not be privately owned.

(4) The digitisation may be possible as fair use.  Yes I know the fair use
definitely has limits, but that doesn't mean that all digitisation would
always be off limits.  I agree we have some way to go to define those
limits.

Those are the cases in which I believe the publisher's permission is not
required -- rather, the author's is. 

The recent ruling "Joan Ryan, et al., vs. CARL Corporation, et al" also
begins to touch on some of these issues of permissions and ownership.

And:  The "appearance" matter may be relevant -- but it not if the
digitiser is using OCR (rather than page images) to reproduce the content,
and is not trying to repliacte the "look" of the specific piece.  The
digitiser has to deal with the copyright holder about the content, but not
the publisher about appearance, in such a case.  I don't have any
knowledge about "typographical rights" so am quite out of my depth in this
area.

Yes, it can be difficult to identify and reach copyright holders, given
the increasingly diverse and complex ownership and rights patterns in the
marketplace.  But it is a fact that we cannot assume that we know who the
rights holder is and that it is inevitably the publisher.  Sorry to take
so long to make a point!

Ann Okerson
______

From: "ALPSP" <alpsp@morris-assocs.demon.co.uk>
To: <liblicense-l@lists.yale.edu>
Subject: Re: copyright issues of scanned articles
Date: Sat, 31 Oct 1998 16:05:34 -0000

I was careful to write 'publisher AND other copyright owner'.  In addition
to copyright in the text itself, there are also rights (for a shorter
period) in the appearance of the page - the 'typographical arrangement'-
which always reside with the publisher.  Thus the publisher's permission
is also required.

There is, at present, no copyright exception under any legislation, as far
as I know, for digitisation.

I am forwarding this message to others who can provide first-hand details
both of the STM/EBLIDA agreement, and of the HERON scheme.  Lex, Suzanne -
could you do so?

Sally

-----Original Message-----
From: Ann Okerson <aokerson@pantheon.yale.edu>
To: Liblicense <liblicense-l@lists.yale.edu>
Date: 30 October 1998 23:45
Subject: Re: copyright issues of scanned articles


>
>In reference to Sally Morris's first paragraph below, I'd think it should
>read "no digitisation can be legally carried out without the explicit
>permission of the **copyright owner** (not "publisher").  I would modify
>it further as follows, " or unless otherwise lawfully permitted."  The
>publisher may not be the owner of the copyright; and "no digitisation" is
>too blanket, I would argue, an assertion.
>
>The rest of the message, which references specific broad-based
>library/publisher agreements or licenses that permit digitisation without
>explicit publisher permission each time (presuming the publisher owns the
>rights), is most interesting.  I think many of us not in UK or Europe
>would like to hear more about HERON and the EBLIDA agreements, please.
>
>Ann Okerson
>Ann.Okerson@yale.edu
>
>_________________________________
>
>On Fri, 30 Oct 1998, Sally Morris wrote:
>
>> At present, no digitisation can be legally carried out without the
>> explicit permission of the publisher and any other copyright owner (who
>> may or may not require a fee) and under the terms specified by them.
>
>[SNIP]
>
>> Sally Morris, Secretary-General
>> Association of Learned and Professional Society Publishers
>> South House, The Street, Clapham, Worthing, West Sussex BN13 3UU, UK
>>
>> Phone:  01903 871686 Fax:  01903 871286 E-mail:
>> alpsp@morris-assocs.demon.co.uk