Re: The Copyright Non-Problem and Self-Archiving

From: Stevan Harnad <>
Date: Mon, 22 Nov 1999 18:45:49 +0000

sh> (1) Authors can self-archive their pre-refereeing drafts the same
sh> day they submit them to the journal for refereeing. There is
sh> absolutely no copyright problem there. Go to (2).
sh> (2) The day they receive their acceptance letter for the final
sh> draft, along with the copyright agreement, if it permits
sh> online-self-archiving, they archive the final, revised draft too.
sh> If the copyright agreement does not permit it, go to (3).
sh> (3) If the copyright agreement explicitly forbids online
sh> self-archiving, authors strike out that passage and sign (or write
sh> in an explicit enabling passage, if it is absent). If the amended
sh> agreement is accepted, go to (2). If the amended agreement is
sh> contested, go to (4).
sh> (4) Link the self-archived pre-refereeing draft (1) to a
sh> self-archived file containing the full list of (nontrivial) changes
sh> that turn it into (2) the refereed, revised, accepted final draft.
sh> No confrontation. No Prisoner's Dilemma. And everything is 100% legal.

   Note: The following sender's identity and the (private) research
   institution referred to here as XXXX have been removed at the
   sender's request.

> When I was at XXXX, we wanted to put XXXX research papers on the
> XXXX website. We presented exactly your suggestion to XXXX's top
> copyright lawyer.
> He told us that it was established law that the rights we had transferred
> plainly precluded evasions such as your (4), in contradiction to your
> assertion that this makes things 100% legal. We asked if there was any
> ambiguity about that, and he told us that putting the "pre-refereeing"
> versions on the website was an unambiguous breach of most of our copyright
> transfer agreements. Thus nixing our plans.
> A copyright violation involving an audio research project had resulted in a
> $1M+ settlement, so the legal risk was perceived to be real.

Something sounds wrong here. Was this a settlement with a journal
publisher who sued (whom?) for web self-archiving (sounds a bit
excessive!) or was it a patent matter?

> What we WERE able to do was to create new works. For example, we took
> figures, added color or annotation, and published them on the website as
> new works. Although the hypercautious low-level lawyers still didn't like
> this, they let it pass because the expert-lawyer had blessed the solution.
> So I would advise people that if they care about being 100% safe and
> lawyer-proof, they should be sure to make intellectually significant
> changes to drafts before extra-permitted self-archiving.

Actually, in the long-hand version of my suggestion, that alternative
was included too:

>All copyright problems can be avoided by adopting the following policy:
> (a) All authors are strongly encouraged to strike out any passage
> that would cede their right to self-archive their final, accepted
> draft online before signing their copyright transfer agreement with
> their publishers.
> (b) If they have already signed a copyright transfer agreement that
> denies their right to self-archive their final, accepted draft
> online, they should either
> (i) self-archive a penultimate draft (pre-refereeing
> preprint) and append a list of all the changes that were
> made to turn it into the final accepted draft, or they
> should
> (ii) self-archive a revised, expanded (post-publication)
> draft and append a list of the changes that were made to
> the final accepted draft.

The two alternatives seem pretty much of a muchness, especially as the
pre-refereeing preprint has ALREADY been publicly self-archived, prior
even to submission to the journal.

I think XXXX's lawyer's advice was wrong about already publicly
self-archived pre-refereeing drafts. (I had different advice from a
distinguished British patent law expert who said that nothing much
could be done about a draft that had already been publicly archived
prior to refereeing).

Now let us not confuse copyright law with journal "embargo" policies,
such as the "Ingelfinger Rule."

Those are not a legal matter at all, but simply arbitrary journal
policies, according to which a few journals (particularly Science [in
contrast to Nature] and the New England Journal of Medicine [in
contrast to Lancet]) officially decline to even REFEREE, let alone
ACCEPT any submitted paper that has been made public previously.

I have written about the arbitrariness and self-servingness of such
policies before (see URLs above); but they in any case have no basis
whatsoever in law, and can very easily be gotten around by some
cosmetic changes to the self-archived preprint to avoid matching (should
these journals ever be foolish enough to actually trawl the Web for
look-alikes before refereeing submitted papers!).

But we are getting into really surreal territory here. It is not the
embargo policy of a handful of journals but the copyright policy of a
larger number of them that is at issue here, and if the
forwards-addenda strategy I proposed in my shorter scenario does not
suit anyone, then the backwards-subtrahenda strategy will work just as well,
and can be duly dubbed a revised, improved "2nd edition" of the
original published article.

Stevan Harnad
Professor of Cognitive Science
Department of Electronics and phone: +44 23-80 592-582
Computer Science fax: +44 23-80 592-865
University of Southampton
Highfield, Southampton
Received on Wed Feb 10 1999 - 19:17:43 GMT

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