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

From: Stevan Harnad <>
Date: Wed, 23 Feb 2000 12:07:38 +0000

On Tue, 22 Feb 2000, Marvin Margoshes wrote:

>sh> Could we hear some informed legal opinion about whether PRIOR
>sh> self-archiving on the Web counts as prior publication in the precise
>sh> sense that one affirms in a copyright agreement stating that "it has
>sh> not previously been published"?
> I'm not a lawyer, but I have had a patent attorney explain to me what
> "publish" means.

Patents (and novels and software and music) are PRECISELY the wrong
model for this give-away literature. Patent lawyers are concerned to
protect the inventor from theft of his product. The researcher WANTS
his "product" "stolen."

> 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.

Is it not patently obvious that this sense of "publication" is
irrelevant to what one signs at the point of copyright assignment? For
if it were a lie and a violation of copyright to say, hand on heart,
that "this work has not previously been published" when one has circulated
prior drafts to other researchers for feedback, and presented it at
seminars and conferences, then 95% of existing copyright transfer
agreements are under violation and always have been!

No, this is not what is meant by "prior publication," of course (for
copyright purposes: press embargoes and "scooping" considerations are
something else, but those neither legal nor copyright matters; they
are merely arbitrary journal policy matters).

What copyright agreements mean by "prior publication" is prior
publication by a publisher, in a journal, conference proceeding, or
book, and for sale. Free self-distribution by the author as paper
preprints or tech reports, or as oral presentations at seminars and
conferences, are not and never have been considered "prior publication"
-- nor could they be, or else scientific research and communication
would have had to come to a virtual stand-still at the behest of
publishers' copyright agreements!

Online self-archiving of unrefereed preprints on the Web is untested in
court, but I would argue (and will bet) that it falls under
self-distribution of the author's research, just as it did on paper
and orally, and not under "prior publication" in the sense used in
copyright agreements. There is simply no justification -- none -- for
treating it otherwise -- except of course as special pleading to
protect journals' current S/L/P revenue streams and modera operandi, in
direct conflict with what is clearly in the best interests of research
and researchers in this new medium and the revolutionary possibilities
it has opened up.

> 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.

If it was false in the case of paper and oral preprints, then this is
all moot, as nothing is new. And if it was not false in the case of
paper and oral preprints, then it is not false in the case of online
preprints either.

> 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.

No ethics are at issue when what one is doing is legal, what one is
saying is true, and one's reasons for doing it are benign. It is not
the researcher's ethical responsibility to resolve in the publishers'
favour the very real conflict between the interests of
research/researchers and publishers that has been created by this new
medium. Let both parties do what they can, within the bounds of what is
legal and what is practicable, and let the cards fall where they may.

And I of course reject completely the shrill sensationalism implicit in
likening the honest distribution of one's research free to one and all
with the fudging of data.

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

NOTE: A complete archive of this ongoing discussion of providing free
access to the refereed journal literature is available at the American
Scientist September Forum (98 & 99 & 00):

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Received on Mon Jan 24 2000 - 19:17:43 GMT

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