Re: Evolving Publisher Copyright Policies On Self-Archiving

From: C.Oppenheim <>
Date: Tue, 9 Nov 2004 12:48:18 +0000

I am indeed not a lawyer/attorney, but am regularly used by publishers as a
legal consultant on licensing and copyright matters. To get formal learned
counsel opinion would cost thousands of dollars.

My view is that the so-called Harnad-Oppenheim solution is legally sound

(i) the document being self-archived is original to the author and is
therefore his/her copyright

(ii) the document submitted to the journal is a copy of (i) and it is
therefore in the author's gift to send it to the journal

(iii) the author then makes appropriate corrections based on referee
comments and resubmits the revised article to the journal

(iv) the author can then state honestly that the item resubmitted has not
been published before because (iii) differs from (ii), and is also free to
assign copyright to the revised text to the publisher if he/she so wishes

However, if the journal accepts the paper as submitted under (ii) without
any changes, then the solution collapses because it is no longer true that
the article as submitted has not been published before.


Professor Charles Oppenheim
Department of Information Science
Loughborough University
Leics LE11 3TU

Tel 01509-223065
Fax 01509-223053
e mail
----- Original Message -----
From: "Stevan Harnad" <>
Sent: Friday, November 05, 2004 6:45 PM
Subject: Re: Evolving Publisher Copyright Policies On Self-Archiving

> On Fri, 5 Nov 2004, Rick Anderson wrote:
> > It seems to me that if David's challenges bear on the legality of a
> > particular OA strategy or practice, especially a strategy or practice
> > that you, Stevan, are specifically encouraging others in this forum to
> > take, then this forum is in fact an excellent place for you to answer
> > those challenges.
> There were two challenges: One was for evidence that authors were actually
> self-archiving preprints and corrigenda (the "Oppenheim/Harnad
> Strategy"). I provided that evidence:
> The second challenge was:
> "to provide any opinion from an intellectual property attorney that
> this is a legally sustainable way of proceeding... not just [SH's] or
> other legally unqualified person's personal argument, however
> I am not sure whether Charles Oppenheim meets David Goodman's conditions
> for a "legally qualified person." He is not an attorney, but he has been
> intellectual property adviser to the European Community and is the author
> Oppenheim, C., (2001) The Legal and Regulatory Environment for
> Information, Infomatics, Fourth Edition. Infomatics, Tetbury, 265pp
> as well the co-author of the Oppenheim-Harnad Strategy in question:
> "Legal ways around copyright for one's own giveaway texts" (2000)
> > Date: Thu, 17 Feb 2000 18:18:43 +0000
> > From: Charles Oppenheim <>
> > Subject: Re: Legal ways around copyright of one's own giveaway texts
> >
> > There is no disagreement. I support Stevan's view that by doing the
> > following:
> >
> > 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.
> >
> > Professor Charles Oppenheim
> > Dept of Information Science
> > Loughborough University
> > Loughborough
> > Leics LE11 3TU
> (Note that Charles' recent posting on this thread was not about the
> preprint/corrigenda strategy (under challenge here), but about the
> post/inform strategy (not originating from me, but of course welcomed by
> me), whereby the author informs his publisher that he has self-archived
> his article and that if no objection is heard within 30 days, it is
> assumed that there is no objection.)
> Stevan Harnad
Received on Tue Nov 09 2004 - 12:48:18 GMT

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