Copyright issues: Reply...

This page is a reply to comments made by Nick Joint about the copyright article.

Nicks original response is tabbed with >'s - Charles response to Nicks response appears as normally tabbed text

> May I congratulate both the author and the journal for publishing such
> an informative and helpful article on the thorny topic of electronic
> copyright in the most recent issue of ARIADNE (May 1996). Could I also
> tease out some points from the section outlining the statement
> to be included in On Demand Publishing contracts with publishers, which
> I copy (for the purposes of fair comment and scholarly criticism!)
> below?
>
> Firstly, it would be interesting to know how to fill in a variable for
> the value "X" in the contract statement! Elib-funded projects are
> funded on an avowedly collaborative basis, which gives rise
> to problems over liability- just who is responsible for what in the
> consortium model, and how do you regulate such responsibility? If a
> lead site handles the drawing up of contracts, should that site be the
> elusive "X", or should the whole consortium be named as the potentially
> offending "X" in question? Even if the consortium is named as the entity
> with whom the publisher makes the agreement, should a separate document
> regulating responsibility be looked to as the main means of regulating
> liability between the members of the consortium, and to what extent
> should the distribution of the liability between members of the
> consortium be explicitly stated in the publishers' agreement (since it
> would be vital for the publisher to know just who is responsible for
> what in the contract they are signing)?

The contract has to be a natural or legal person. A consortium team may have no formal status (e.g. as a partnership or registered companhy), so I would always recommend that the contract should be signed with the lead institution. You might then want to have letters of agreement between that lead institution and the partner institutions outlining their share of their responsibilities (this is how SCOPE, for example, has done it).

> Secondly, the phrase limiting the danger of liability through
> infringement of moral rights ("the Information used as contemplated
> in this Agreement does not infringe any copyright or OTHER
> PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS of any natural or legal
> person...") makes it very important that the exact nature of the use
> of the information is explicitly laid out somewhere in the agreement.
> Since many On Demand Publishing Elib projects will be taking excerpts
> rather than complete works of authors, it is important that
> publishers/authors be aware that they are being asked for permission for
> partial copying of a work, and for a statement that moral rights (rather
> than "copying rights") are not being infringed in any way. This is
> especially true in view of the final sentence of the clause, which
> renders the protection given by the clause invalid if the work of the
> author is amended in any way- partial copying may be taken as a
> form of amendation to the work, and thus prohibited by the terms
> of the clause itself.

Yes, absolutely right, and the question of Moral Rights should have
been adressed at far greater length in my article. The digitising
may well be permitted by the copyright owner, but that does not stop
Moral Rights arising if only a selection of the book is
scanned in. The author may object on the grounds that this is
derogatory treatment. How to deal with this? *Either* write to the
author in person outlining what you plan to do and ask for their
agreement to it; *or* go ahead anyway and hope that what you are
doing is not derogatory treatment. the latter is risky! On the plus
side, Moral Rights only apply if the person has asserted them. By
checking the book to see if the author has asserted his/her Moral
Rights. if there is no mention of such an assertion, you can ignore
the issue of Moral Rights.

> Lastly, the clause is an excerpt from a contract between
> an Elib project and a publisher. Because (as the article
> specifically states) authors can assign copyright but
> reserve moral rights, for a publisher to sign the contract
> in legal safety, they would have to contact their authors to gain
> assurance that (for example) partial copying of their work does
> not infringe their moral rights. Only then could the publisher sign
> the contract. Isn't this rather a lot of work for them? Surely there
> is a danger of them walking away from the amount of administration
> involved in this sort of agreement?

Publishers are completely free to assign copyright as they see fit.
They are not going to get involved with the arguments on Moral Rights
- that is between the eLib consortium and the author direct - so it
does not cause a problem for the publishers, other than perhaps to
supply the consortium with the publisher's address, or act as a post
box for communications.

> I make these points having read recently that the conductor Claudio
> Abbado is suing his record company for "publishing" a cd of excerpts
> from Abbado's cycle of Mahler symphonies. These excerpts
> were compiled allegedly in breach of his moral rights. If only they
> had contacted Charles Oppenheim before producing the album...

Yeah, and if only I charged a proper consultancy fee... :-<

This page is a reply to comments made by Nick Joint about the copyright article.

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