Re: Copyright: Form, Content, and Prepublication Incarnations

From: Stevan Harnad <>
Date: Mon, 17 Nov 2003 20:42:07 +0000

On Mon, 17 Nov 2003, Troy McClure wrote:

> ive been browsing through the citebase and quite a few of such messages came
> up:
> "This paper has been withdrawn by the authors due to copyright."

I have to admit that this is the first I've ever heard of any papers
being removed from Arxiv for copyright reasons. I will ask Tim Brody (creator
of citebase) to see whether there is a more sensitive way to do a count,
but using "copyright" and ("remove" or "withdraw") I found 6 papers out
of the total quarter million since 1991.

(That doesn't sound like many to me! Some of it seems to have been
3rd party stuff, with someone other than the author himself doing the
archiving. And some, as noted recently in this Forum, was removed because
it had been plagiarized! Note also that in a sense ArXiv itself is a
3rd party, for it is not the author's own institional archive, but that
distinction is trivial, as many times noted in this Forum.)

> in practise, how often is this the case that papers of self archives are
> withdrawn due to copyrights? ive read about the 55% which allow self
> archiving. but what about the other 45% (even though the actual number might
> be lower after having asked the publisher)?

If it stands at something like 6 papers out of a quarter million across 12
years, I would say the incidence is not worth giving a second thought to.

> three (perhaps interesting) things in this matter: (a) copyright laws are a
> trade-off between the interests of the public and the interest of the
> copyright holder in access to intellectual work; (b) copyright laws main
> function is to secure long term creation of work by protecting up front
> investment necessary for the creation and production of work (it also
> obliges to acknowledge the author's moral rights by requiring citations and
> thereby protecting his non-monetary incentive to create - but without
> stringent access restrictions). (c) what is the effect of copyright
> protection on future creation of work (scientific writings)?

Refereed research is and always has been anomalous among writings because
it is an author give-away. The open-access author wants protection only
from theft-of-authorship (plagiarism) and text-corruption, but not from
theft-of-text (reading, copying, printing).

> as for (a), this trade-off is reflected in the exceptions (fair usage) for
> non-copyright holders (the more exceptions, the "better" for society and
> non-copyright holders; fair use is not a static concept; those exceptions
> develop over time; Q: "is self archiving fair use?"). given the importance
> of self-archiving for the society as a whole, one could argue that the
> interests of the society should be given more attention (by expressively
> giving the author the right to self archive; despite that it is "making
> available" which normally requires authorization by the publisher and the
> contractual agreement not to publish the paper somewhere else)

That's more or less what the green publishers are doing: formally
agreeing that the author can self-archive.

> as for (b), copyrights protect (publishers) investment in order to secure
> long term creation of work. given the new distribution possibilities, and
> the actually - counterproductive - imlications of copyrights (see (c)), does
> the need to protect the publishers investment justify the prohibtion of
> self-archiving?

Of course not, and the white publishers will become green.

> as for (c), access barriers (in form of the possibility to prohibit
> self-archiving) actually PREVENT the creation of new work. hence, the
> rationale of copyrights (to secure creation of work) is basically the
> opposite from the actual effects that copyrights have on the future creation
> of work with respect to scientific writings.

All these copyright details, invented for non-give-away writing (in
Gutenberg days) ill-fit give-away writing in the online era.

> my concrete question: has there been a case in which a court expressively
> ruled that publishers can prohibit self archving? while it might seem that
> it is a clear violation of the contractual agreement between the publisher
> and the author, given the high interest of the society (a), and the function
> of copyrights (b), and (c) the highly counterproductive effects a
> prohibition of self-archving has, it is debateable (at least to me) whether
> publishers can legally enforce a prohibition of self archving (i am aware
> that publishers could perhaps find other ways to prevent self archiving;
> nevertheless a court ruling would create certainty)

No, it has not been attempted and it will not be. But fussing about it
notionally has needlessly held back self-archiving for years (among

> Prof. Wilson writes that "4... at least in the UK, there has been no court
> case to determine whether or not the assignment of copyright (which is a
> personal right) to a publisher is valid - as far as I am aware, no publisher
> has taken an author to court for breach of copyright that was originally
> vested in that author."
> (
> has someone else additonal insights?

Only that these very same questions have been ruminated over, passively,
and with endless repetition, in the American Scientist Forum for at
least 6 years now -- while the physicists (and representatives of other
disciplines too) have instead been sensibly self-archiving. Quo usque
tandem... patientia nostra abutere?

Stevan Harnad
Received on Mon Nov 17 2003 - 20:42:07 GMT

This archive was generated by hypermail 2.3.0 : Fri Dec 10 2010 - 19:47:09 GMT