-------- Original Message --------
Subject: Legal ways around copyright for one's own giveaway texts
Date: Tue, 22 Feb 2000 11:17:17 +0000
From: Stevan Harnad <harnad@coglit.ecs.soton.ac.uk>
NOTE: A complete archive of this ongoing discussion of "Freeing the
Refereed Journal Literature Through Online Self-Archiving" is available
at the American Scientist September Forum (98 & 99 & 00):
http://amsci-forum.amsci.org/archives/september98-forum.html
You may join the list at the website above.
Discussion can be posted to:
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---------- Forwarded message ----------
Date: Tue, 22 Feb 2000 10:51:51 +0000 (GMT)
From: Stevan Harnad <harnad@coglit.ecs.soton.ac.uk>
To: Terry Martin <martin@law.harvard.edu>,
"Bernard J. Hibbitts" <hibbitts@law.pitt.edu>
Cc: Stephen Saxby Law EJ <S.J.Saxby@soton.ac.uk>,
Hal Varian EJ <hal@sims.berkeley.edu>,
Ann Okerson <ann.okerson@yale.edu>,
Jennifer Bankier EJ <bankier@ac.dal.ca>
Subject: RE: legal ways around copyright for one's own giveaway texts
Dear Bernard & Terry,
I'd like to hear your US legal opinion on Charles's UK legal opinion
about the following legal way to get around copyright restrictions on
the open online self-archiving of one's refereed papers.
First, what Charles said in reply to my query. And below it, what I
myself have written in a recent D-Lib article.
The rationale is that copyright laws were drafted to protect (1)
intellectual ownership [not contested here] and (2) proprietary text,
intended for sale. The laws were never intended for give-away
literature.
Consequently, they cannot really cope with "self-piracy," which is so
unlike the "allo-piracy" that is involved in the theft and/or sale of
the products of OTHERS (texts, software, inventions). Here authors
merely wish to GIVE away to the world, free, the intellectual
property they have likewise given to their publisher (to sell).
Read on:
---------- Forwarded message ----------
Date: Thu, 17 Feb 2000 18:18:43 +0000
From: Charles Oppenheim <C.Oppenheim@lboro.ac.uk>
To: Stevan Harnad <harnad@coglit.ecs.soton.ac.uk>, kam.patel@thes.co.uk
Subject: RE: legal ways around copyright of one's own giveaway texts
There is no disagreement. I support Stevan's view that by doing the
following:
1 author posts unrefereed preprint on web site
2 author submits same at a later date (maybe five minutes later!)
to
a refereed journal
3 if/when accepted, author makes amendments to the article
in the light of the referees' and editor's comments
4 author signs copyright assignment form of publisher and hand on
heart confirms that this article has not appeared anywhere before
5 author then posts note onto preprint, pointing out the sorts of
areas where corrections might need to be made by a reader to
improve the text
then the author has done nothing wrong, has broken no law, and has not
signed a contract (s)he should not have signed.
Professor Charles Oppenheim
Dept of Information Science
Loughborough University
Loughborough
Leics LE11 3TU
Tel 01509-223065
Fax 01509-223053
---------------------------------------------------------
In my D-Lib article I formalized this as follows. (Note the distinction
between my recommendations for how to deal with copyright, a legal
matter, versus how to deal with embargoes and submission restrictions,
which are not legal matters but mere (arbitrary) journal policies):
Harnad, S. (1999) Free at Last: The Future of Peer-Reviewed
Journals.
D-Lib Magazine 5(12) December 1999
http://www.dlib.org/dlib/december99/12harnad.html
...Copyright transfer agreements today are hence merely a Faustian
means of holding the literature hostage to S/L/P
[Subscription/Site-License/Pay-Per-View] tolls. Authors sign them,
because they need to have their papers peer-reviewed and certified
as such (and at the highest possible level of the QC/C
[Quality-Control/Certification] hierarchy of journals), for the
sake of their research impact, and hence their careers. But it is
not the S/L/P costs and the access barriers that fulfill that need,
in the era of open self-archiving, it is the QC/C alone. That's all
that Give-Away authors need. That's all they ever wanted. The open
archiving can do the rest, and far better than the Gutenberg system
ever could.
So authors should transfer to their publishers all the rights to
sell their papers, in paper or online, but they should retain the
right to self-archive them online for free for all. Many publishers
will agree -- the American Physical Society
<ftp://aps.org/pub/jrnls/copy_trnsfr.asc> being a model in this
respect -- because their scholarly/scientific goals are in harmony
with those of their authors and readers. But with those publishers
whose copyright agreement explicitly forbids the public
self-archiving of the peer-reviewed final draft, the solution is to
self-archive the preprint at the time it is first submitted for
publication, and then once it is accepted, simply to archive a
"corrigenda" list consisting of the changes that went into the
revised final draft; alternatively, a further revised, enhanced
draft, going substantively beyond the accepted, final draft, with a
fuller reference list, Hyperlinks, more data and figures added,
etc., can be self-archived, together with a "de-corrigenda" list of
what in this new edition was not in the final accepted draft.
Either way, the handwriting (or rather the skywriting) is on the
wall.
This gets around copyright restrictions (note that analogies with
online piracy of text, music and software are irrelevant because we
are speaking of "self-piracy" here). A further potential obstacle
is an embargo policy like the one the New England Journal of
Medicine (see <http://www.cogsci.soton.ac.uk/~harnad/
Hypermail/Author.Eprint.Archives/0019.html>) practises under the
name of the "Ingelfinger Rule" (see
<http://www.cogsci.soton.ac.uk/~harnad/Hypermail/Author.Eprint.Archives/0020.html>)
and that journals like Science,
<http://www.sciencemag.org/cgi/eletters/285/5425/197#EL12>,
likewise practise.
I don't think I need to spell out for Web-savvy authors how easily
arbitrary and self-serving policies like this can be gotten around
by suitable cosmetic measures on one's self-archived preprint. In
any case, I doubt that journal editors and referees (who, after
all, are us), will long collaborate with policies that are no
longer either justified or necessary, being now so clearly designed
solely in the interest of protecting current S/L/P revenue streams
rather than in the interest of disseminating research. Besides,
journal embargo policies, unlike copyright agreements, are not even
legal matters.
I don't think there is any doubt in anyone's mind as to what the
optimal and inevitable outcome of all this will be: The Give-Away
literature will be free at last online, in one global, interlinked
virtual library (see
<http://www.cogsci.soton.ac.uk/~harnad/citation.html>), and its
QC/C expenses will be paid for up-front, out of the S/L/P savings.
The only question is: When? This piece is written in the hope of
wiping the potential smirk off Posterity's face by persuading the
academic cavalry, now that they have been led to the waters of
self-archiving, that they should just go ahead and drink!
--------------------------------------------------------------------
Stevan Harnad harnad@cogsci.soton.ac.uk
Professor of Cognitive Science harnad@princeton.edu
Department of Electronics and phone: +44 23-80 592-582
Computer Science fax: +44 23-80 592-865
University of Southampton http://www.cogsci.soton.ac.uk/~harnad/
Highfield, Southampton http://www.princeton.edu/~harnad/
SO17 1BJ UNITED KINGDOM
NOTE: A complete archive of this ongoing discussion of "Freeing the
Refereed Journal Literature Through Online Self-Archiving" is available
at the American Scientist September Forum (98 & 99):
http://amsci-forum.amsci.org/archives/september98-forum.html
