Re: NIH Public Access Mandate Passes Senate

[Kevin L Smith <kevin.l.smith@duke.edu>]

I trust that even your ectoplasmic professor would acknowledge 
that some subjects are complex and require the making of careful 
distinctions. Lawrence Friedman's wonderful "History of American 
Law" might help clarify my remark about the origin of American 
notions of property in the Norman Conquest.  But the bottom line 
is that property law in general, and intellectual property 
specifically, is a very complicated topic that is ill-suited to 
rhetorical posturing.

Kevin Smith


"Joseph J. Esposito" <espositoj@gmail.com>
Sent by: owner-liblicense-l@lists.yale.edu
11/01/2007 07:26 PM
Please respond to liblicense-l@lists.yale.edu
Subject Re: NIH Public Access Mandate Passes Senate

I was surprised to learn that I have a "notion of ownership . . . 
that has not existed for any type of property in the 
Anglo-American legal system since the Norman Conquest."  I was 
not sure where to look for edification.  To my lawyer, perhaps, 
or I could reach out to a psychologist.  I chose instead to 
conjure the English professor who first introduced me to George 
Orwell's "Politics and the English Language."  He shook his head 
when he reviewed this thread.  "When you feel someone is 
obfuscating the facts," he said, "they usually are.  Never buy a 
pre-owned vehicle when a used one will do. When in doubt, 
Orwell."  His ghostly utterance is copyright (c) 1973 by Rutgers, 
the State University of New Jersey.

Joe Esposito

----- Original Message -----
From: "Kevin L Smith" <kevin.l.smith@duke.edu>
To: <liblicense-l@lists.yale.edu>
Sent: Wednesday, October 31, 2007 3:45 PM
Subject: Re: NIH Public Access Mandate Passes Senate

> You seem to be demanding an unrealistically absolute notion of
> ownership in this case that has not existed for any type of
> property in the Anglo-American legal system since the Norman
> Conquest.  As flawed as the analogy between IP and tangible
> property is, it may be helpful here.
>
> According to the deeds, I have owned two houses "in fee simple"
> -- the most absolute form of ownership we recognize.  Yet my
> first house was subject to two easements, one for powerlines
> running along the back of the property and one for a shared
> driveway.  My current resident had, as a condition of purchase,
> agreement to a homeowners association covenant. Both pieces of
> property are subject to taxation, recordation requirements and
> zoning laws.  Is my ownership of my house "unpersuasive"
> because I am prevented from running a law practice out of my
> garage?
>
> Ownership of personal property is similarly conditional.  I
> have to register my car, get it inspected and pay taxes on it.
> If I use it in ways proscribed by the government it is even
> subject to seizure.
>
> Intellectual property, of course, has always been subject to
> limitations and exceptions.  A large chunk of the copyright act
> -- sections 107-122 -- detail these limitations, including a
> number of compulsory licenses.  Why do these not render
> copyright ownership illusory, but the NIH requirement would?
> Trying to shift the terms of debate by claiming that this
> mandate would turn all academic writing into work made for hire
> is really unpersuasive, given that many similar restrictions
> that already exist do not have that effect.  The real issue, of
> course, is not that authors' rights are in danger, it is a
> mistaken perception that the income stream of publishers will
> be threatened; we should have the debate on those terms, where
> the author's interests may well lie on the side of public
> access.
>
> Kevin Smith
>
> ****
>
> "Joseph J. Esposito" <espositoj@gmail.com>
> Sent by: owner-liblicense-l@lists.yale.edu
> 10/30/2007 07:57 PM
> Subject Re: NIH Public Access Mandate Passes Senate
>
> Mandating a nonexclusive right means that the author does not
> fully control the rights.  Okay, fair enough:  if you don't
> believe that an author should have the full rights, why not
> just say that?  Saying one own something except for when one
> doesn't isn't persuasive.
>
> As I said in my original post, I have no problem with saying
> that work funded by a third party should be considered a work
> for hire.  What I find troubling is the pretense that this is
> about authors' rights when it in fact is taking away some
> authors' rights.
>
> And this is why mandates are necessary, because open access
> does not have the full support of the authors themselves.
> There are exceptions to this and they are significant.
>
> My own view of a better policy (seconding in part Ann Okerson's
> recent comment to this list, but I doubt she would extend the
> remark as I am) is that government-funded research should be
> written up and posted to government-funded open access Web
> sites without an embargo.  In this formulation the author
> (really "the writer") has no rights in the work except for
> those the granting body chooses to assign to him or her.  In
> some instances, the funding agency may choose to claim
> authorship of this work, as the work-for-hire statute provides
> (as in "copyright (c) by the NIH").
>
> This will ultimately be much more expensive than the current
> system, but if costs were the issue, we wouldn't be talking
> about open access to begin with.
>
> Joe Esposito