From: Anthony Watkinson <[log in to unmask]>
Date: Fri, 15 Jun 2012 09:12:32 +0100

Dear Mary

Richard is writing from the UK and so am I. He may well know more
about IP law that I do, but I have to teach it and I am constantly
being surprised by the differences between the concept of fair use and
the concept of fair dealing (which is what we have in the US). I have
US students and I urge them to work out these differences for
themselves.

As I understand it in the UK, we have copyright as a property right
and exceptions to copyright which are laid out. There are restricted
acts and there are permitted acts. I am aware that this is a
mechanistic way of looking at the legal basis and of course (like you)
we have courts who provide judgements which bring in other
considerations. We do not have The Constitution, however, to appeal
to.

In the UK there is customarily an appeal by publishers to the
so-called three step test in the Berne convention (treaty). Here is
for example a quote (paragraph 15) from a recent submission by the
PA:(http://www.publishers.org.uk/files/PA_Response_to_Copyright_Consultation_21_March_2012_docx.pdf)

"The existence of exceptions to copyright are part of an overall
"balance" in any copyright system, which foresees the possibility of
limiting rightsholders" rights in certain special circumstances
important to society as a whole, where there is a very clearly defined
public policy objective not already met by the market itself. The
Berne Convention and its 3-step test explicitly recognises and
provides for this"

For many years the 3-step test was not in the UK law, but it is
explicitly now. In US law it is not explicit but the US have signed
Berne.

The same submission covers the proposed copyright exception for text
and data mining. The exception is for non-commercial mining only. The
publisher concern is that it will be impossible to distinguish
commercial from non-commercial. They do not want another commercial
company exploiting material for which they hold copyright. This is a
very simplistic view of course, but I hope broadly correct. The
objection is in line with the aims of the 3-step test.

Now I am well aware that this is only part of the picture. In the open
world, everyone would be able to do what they liked with anything on
the web and that is the vision of some.

I am also well aware of the problems that some scholars (not many?)
have in text and data mining because there are no general licensing
provisions.

I am also aware that I am not a lawyer, and I do not even have the
understanding of intellectual property as my main job.

Anthony

-----Original Message-----
From: Mary Murrell <[log in to unmask]>
Date: Wed, 13 Jun 2012 20:12:32 -0700

Anthony,

Your comments beg a question. Is there any need for a researcher to ask
for permission to text mine? Such a use is, to many people (myself
included), a fair use under copyright. As I understand it, some librarians
don't even negotiate "mining rights" (or whatever they would be called)
into a license agreement with publishers because they don't want to give
any ground on the issue of fair use.

Mary Murrell


> From: Anthony Watkinson <[log in to unmask]>
> Date: Wed, 13 Jun 2012 10:13:20 +0100
>
> Richard
>
> We shall see. I read the blurb not the article. It was the "increasingly
> protesting" that seems to me to demand more than an opinion to justify.
> There is of course the heading but let that pass. It is advocacy after
> all.
>
> A little embarrassing however - almost as embarrassing as the "academic
> spring".
>
> I recognise that there is been quite a bit of noise, partly from other
> journalists, but surely a proper survey is needed to underpin this sort of
> remark?
>
> My opinion is partly based on the study by Eefke Smit and her colleague -
> see:
>
> http://www.publishingresearch.net/documents/PRCSmitJAMreport20June2011Versio
> nofRecord.pdf.In the summary (2011) they write:
>
> "The mining requests that publishers receive are not very frequent (mostly
> less than 10 per year, a good share even less than 5 per year) and come
> mostly from Abstracting and Indexing services and from corporate
> customers.".
>
> They do suggest (from the survey) that there are more requests but they
> also say that the great majority of these have been met by licence.
>
> I would love to know if there is a big increasing demand that is not being
> met by licence/permissions.
>
> Anthony
>
>
> -----Original Message-----
> From: Richard Poynder <[log in to unmask]>
> Date: Tue, 12 Jun 2012 06:46:24 +0100
>
> Anthony,
>
> My assertion was not based solely on the views and experience of Peter
> Murray-Rust, as those who read the PDF file will see. I don't doubt
> that the RSC and the ACS would disagree, but feel free to send me some
> names of scientists you know who would disagree. I am more than happy
> to hear their views.
>
> Richard