[Taxacom] BHL and print on demand publishers: defintion of "work"

Donat Agosti agosti at amnh.org
Mon Apr 2 22:02:16 CDT 2012

Dear Curtis
You are the American arguing about copyright and thus should use case law to
make your case. Otherwise you just make an interpretation of law at your own
and bend it in the one or the other direction. So, you should tell me when
making cases regarding copyright.

I am operating from Switzerland. Our legal situation is in our Agosti &
Egloff 2009 publication explained. The legal part is written by one of the
foremost swiss legal experts. All we do at Plazi, i.e. creating by
extracting from the published record and providing access to treatments, is
based on this opinion. Even if there is a legal case against this, we are
not a bunch of taxonomists who made something up, but we did our best to
follow existing law, that is slightly different than US and EU law.
Therefore, the argument cannot be made against us that we acted in
ignorance. We are also not having boundaries that we build up of fear of
legal prosecution that drives most of this discussion.

By having a legal advice, we can also foster the case that public funded
science should be exempt from commercial copyright law. A lawyer can more
easily talk to his colleagues. And there is an increasing understanding, not
only in Switzerland, but also the US, that public funded research
publication has to be open access (see the NIH mandate and the recent debate
on the Research Works Act).


-----Original Message-----
From: taxacom-bounces at mailman.nhm.ku.edu
[mailto:taxacom-bounces at mailman.nhm.ku.edu] On Behalf Of Curtis Clark
Sent: Tuesday, 3 April 2012 6:16 AM
Subject: Re: [Taxacom] BHL and print on demand publishers: defintion of

Can you cite US case law? I'm not just being argumentative; I'm interested
in the court's opinion.

On 4/2/2012 9:45 AM, Donat Agosti wrote:
> DA: This is not solely for the purpose of freeing these works. This is 
> a legal interpretation and not a scientists point of view.
> If we are scientists, and at the end even we taxonomists believe we 
> are, then we talk about testatable or refutable hypothesis. A 
> description is part of the circumscription of a hypothesis (eg the 
> species as seen in the respective publication) that has to include 
> those elements that separate it from others (diagnosis) that are 
> facts. It is not because of the creative act that you use a character 
> or another, but because of the discovery process that lead to discover 
> this fact.
> In fact we are to some extend automatons, part of the systems that 
> describe and redescribe the ca 1.8 million species resulting in a 
> multiple of descriptions. We even fight in this list whether peer 
> review out be part of the publishing process, especially now in the 
> age of e-publications.
> The role of the scientist is to discover the new species and higher 
> taxa; the description is a routine process to publish and communicate 
> the discovery. The trend today is to create character matrices and 
> ontologies, which exactly stress the point, that we believe in a 
> system that we all share, not a create process with a lot of 
> individual freedoms, and one tha allows to make comparisons over large 
> scales.
> We do not describe our species in terms of values such as a nice or 
> nicer, lovely species nor in poems.

Curtis Clark        http://www.csupomona.edu/~jcclark
After 2012-01-02:
Biological Sciences                   +1 909 869 4140
Cal Poly Pomona, Pomona CA 91768


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