Re: Legal ways around copyright for one's own giveaway texts

From: Marvin <physchem_at_EARTHLINK.NET>
Date: Tue, 22 Feb 2000 14:42:56 -0500

----- Original Message -----
From: Stevan Harnad <>
> > > From: Charles Oppenheim <>
> > >
> > > 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.
> >
> > It seems to me that step 4 can be illegal.
> Can we have some other opinions on this (preferably professional legal
> ones)?
> I can think of one ostensively awkward special case:
> Suppose 3 is IDENTICAL to 1: The referees recommend no changes
> whatsoever, and the editor accepts as-is.
> But then it all comes down to what "appeared anywhere before" means.
> If preprints are circulated to colleagues (on paper) before submission,
> they have in a sense "appeared" somewhere, but no one would regard that
> as illegal. Clearly what's meant is PUBLISHED before, and published not
> just in the trivial sense that a hand-written text circulated to a few
> people is publication, but published in the same sense that the journal
> is about to publish it.
> Could we hear some informed legal opinion about whether PRIOR
> self-archiving on the Web counts as prior publication in the precise
> sense that one affirms in a copyright agreement stating that "it has
> not previously been published"?

I'm not a lawyer, but I have had a patent attorney explain to me what
"publish" means. It is "to make public", and the format doesn't matter, nor
does the number of copies. It can even be an oral disclosure to a small
group. A disclosure isn't a publication if it is done as a confidential
disclosure. Thus, submitting a manuscript to a journal and having it
reviewed is not publication because the editors and reviewers are supposed
to keep the document confidential. The same applies to grant applications.

In the case of copyright in the U.S., the author does not lose the copyright
simply by publishing the article. (See for
more authoritatve information.) He could still assign the copyright to a
journal. However, signing a copyright release with a statement about prior
publication that the author knows to be false is probably as illegal as
making any other false statement in a legal document. Perhaps it isn't a
violation of criminal law, but of civil law.

And I say again - there is also the matter of ethics. Ethics is still
considered to be important among scientists. Quite a few have ruined their
careers by publishing "fudged" data.
Received on Mon Jan 24 2000 - 19:17:43 GMT

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