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

From: Stevan Harnad <>
Date: Fri, 10 Mar 2000 15:37:08 +0000

Alan Story is a friendly critic, so I will reply on the assumption that
we are both looking for a favorable outcome: something that frees the
givaeway literature (consisting mainly of refereed journal papers) from
all access-blocking tolls.

Let us make one important distinction first:

There are (at least) 2 functions of copyright, but their motivations and
implications (in the special case of the giveaway literature) are
radically different:

(CT) Protection from theft of text (not sought by giveaway authors).

(CA) Protection from theft of authorship (sought by virtually all

On Fri, 10 Mar 2000, Alan Story wrote:

> 1. On March 10 2000 at 3:00 p.m., an academic (A)completes
> article (X) on "Why Ken Livingstone Should be Mayor of London."
> 2. At 3:10 p.m. (A) posts (X) on her/his personal web archives.

Note that (as Ken Weiss recently put it), the genie has now been let
out of the bottle, for there is no such thing as a "personal" archive
on the web. Wherever a paper is archived, it is "public," in the sense
of being publicly accessible by anyone and everyone on the web (except
if the website is firewalled, pass-word protected, and/or encrypted --
and that is not what is meant by self-archiving in this Forum). The
publicly self-archived documents can and will be cached in multiple
sites, harvested, copied and linked-to in ways that are completely out
of the author's control. For the giveaway author, this is exactly what
he wants to happen.

> As soon as this is done, (A) will have copyright (C) in (X)
> as it meets copyright requirements (e.g. originality, work,
> fixation in tangible form, available to public, etc.) which
> subsists until death of the (A)+70 years. (A) can
> allow anyone to use X (e.g. for non-profit educuational
> purposes).

Fine. That protects the work for CA; no "protection" from CT is sought.

> 3. At 3:15 p.m. on 10 March (A) posts (X) to
> publisher(P)...who passes it on to a referee.
> 4. On the basis of the referees comments, A edits X...which
> nows become X1. (though, see below, the
> differences between X and X1 may not matter for copyright
> infringement purposes....)
> 5. (B) requires that (A) assigns all copyright,
> re-publication, digitalization rights in X1 to (B). (A)
> agrees and signs the publisher's standard form contract.
> The copyright (C1)(and all other rights) in X1 are owned by
> (P).

Authors are advised to retain web self-archiving rights, but if the
publisher does not agree, the rights to the final draft (X1) can be
signed over; the first draft (X1) is already publicly accessible, and
copyright cannot be violated retroactively.

> 6. On 30 March (assume a very speedy (R),(A) and (P)....),
> (P) simultaneously publishes X1 in its hard-copy
> journal and its digital journal.
> 7. On 1 April, nasty (I) allegedly infringes copyright in
> the article by photocopying a substantial part for use in a
> student course pack (ie. no permission sought, no fee
> paid, no attribution etc.) Unless X and X1 are very
> dramatically different, we can assume that the alleged
> infringement by (I) would be in relation to both X and X1.

There is no interest whatsoever in photocopying by 3rd parties in this
scenario. In fact, there is no particular interest in any form of print
on paper. A copy of the original text, X, has been publicly archived
for one and all, and can be (and has been) called up on countless
people's screens. Whether they commit a crime in printing it off (and
whether that crime is enforceable) is of no interest. The only
potential "criminal" at issue here, is the giveaway author (A), not a
web user (I).

My contention (and Charles Oppenheim's) is that A has committed no
crime, either in self-archiving X or in later signing C. No 2nd or 3rd
parties are on trial or at issue here. (Those dominos will take care of
themselves; let any who wish to brave the waters of legislating and
enforcing what web-surfers can and cannot print off from web pages
worry about those things; authors merely desirous of self-archiving
their own giveaway tests legally need not).

> Which then raises the following questions....
> 1) In the above scenario, what happens to (A)'s copyright
> (C) in X? That is, would A have a cause of action against
> (I)? Or would only (P)? Or would both of them?

If someone tries to violate CA (theft of authorship), then both A and P
may want to go after him. If someone merely violates CT (theft of
text), A applauds it; the rest is P's problem.

> 2) In the proposed scheme, does (A) also assign (C) to (P)?
> (which, unless there were additional contractual clauses
> ---- as in the American Physical Society form--- would mean
> that (A) no longer has any rights over X.)

As I said; A tries to assert the right to self-archive the final
refereed, accepted draft, X1. If the publisher refuses, A only
self-archives a list of corrigenda to X, the genie that has been
out of the bottle since before C was assigned.

> 3) If (A) does NOT assign C to (P) and then (P) does
> something with X1 that (A) doesn't like ( e.g.
> allows a crummy journal (CJ) to publish another version
> (now X3) without attribution to (A),) does (A) have a cause
> of action against (P) and (CJ) for copyright infringement?
> That is, although (CJ) has used X1 to publish X3, X3 may
> also likely infringes X...which would give (A) a cause of
> action against (CJ) as the primary infringer and against
> (P) as the secondary infringer.

> Alan Story
> Kent Law School
> University of Kent

No one likes to be plagiarized (CA); Author A might or might not take
action against CJ for theft of authorship, but I doubt that many A's
would bother. Once a paper has been duly refereed, accepted, published,
its priority established, and academic credit duly given, plagiarism in
a crummy journal is for the most part a victimless crime -- or at least
the victim is not A (maybe it's the employer of the false author, who
promotes him on the strength of his plagiarism).

We are talking about a giveway literature here, rarely cited, barely
read. The rip-off of a patent or a best-seller is just the wrong
analogy to hold in mind here.

The Net, by the way, not only makes plagiarism easier to perform; it
also makes it easier to detect (if/when it matters).

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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