Re: Do PrePrints and PostPrints Need a Copyright Licence?

From: Steve Hitchcock <sh94r_at_ecs.soton.ac.uk>
Date: Mon, 17 Oct 2005 12:41:14 +0100

Roger Clarke proposes that a Creative Commons (CC) licence or similar for
self-archived preprints and postprints; Stevan Harnad suggests that such a
licence would be a good idea for self-archived preprints only. Neither
makes clear exactly why this would be a good thing. Stevan says it is "to
*protect* it (the preprint) until the final postprint is ready". But
protection isn't the purpose of CC licenses. Protection is vested with the
author of a new work in implicit copyright, and self-archiving does not
remove that protection. The issue is that authors of self-archived papers
typically want to allow users more rights, and to state something to this
effect.

This recent article by an admitted non-expert on CC may be helpful to those
in seeking similar enlightenment:
"Creative Commons is actually more about protecting the audience you're
hoping will use your work than it is about protecting you. You still hold
on to whatever rights you reserve, but you're abandoning some of those
rights on purpose."
Does Creative Commons free your content?
http://reviews.cnet.com/4520-3000_7-6357305-1.html?tag=nl.e501

To be fair, Roger Clarke makes this point too, but while his main focus
seems to be on the position regarding rights transfer to a publisher, I'm
not sure whether in this situation a CC licence is necessary or desirable,
since it may be a complicating factor.

In Roger's First Monday article the 'process envisaged' in the role of the
copyright licence through pre^Ípublication, review and formal publication
reaches this point re. the publisher:

"Irrespective of which approach the publisher adopts, the copyright
arrangements in respect of the final version of the article do not affect
the (possibly many) existing licences relating to the (Pr)ePrint. Nor do
they affect the ongoing availability of the (Pr)ePrint and of licences in
relation to it. They may, however, preclude the provision of later versions
of the work, and in particular of the version that is to appear in the
refereed venue."

Someone with more legal expertise than me could comment on whether it is
correct to say that the copyright arrangement with a publisher *does not*
affect the existing (e.g. CC) licences relating to the (Pr)ePrint. Since it
is likely to be more restrictive then it seems to undermine the point of
any prior licence.

There are good arguments both for CC licences and, to avoid disrupting the
path to publication, for sticking with typical publisher licences (amended
to allow self-archiving) for postprints. Stevan's position, partly amended
here, has always been that CC licences are optional but unnecessary for
self-archived works that are intended for publication. That would appear to
remain a reasonable recommendation until there is greater clarity about
what authors of self-archived papers want to achieve with their inherent
rights in this new age of wide online dissemination, and clarification of
the legal position of rights statements regarding successive versions and
derivative works.

Steve Hitchcock
IAM Group, School of Electronics and Computer Science
University of Southampton, SO17 1BJ, UK
Email: sh94r_at_ecs.soton.ac.uk
Tel: +44 (0)23 8059 3256 Fax: +44 (0)23 8059 2865


At 20:23 16/10/2005, Stevan Harnad wrote:
>As Roger Clarke's email form letter to Repository Managers is being
>circulated quite widely, I would accordingly like to make these comments
>and suggestions publicly:
>
>(1) For the unrefereed, unpublished preprint, it is a good idea to do
>as Roger recommends: to adopt some form of provisional Creative Commons
>License rather than just putting it "nakedly" on the Web when self-archiving
>it.
>
> http://creativecommons.org/licenses/
>
>(2) This does not apply, however,, to the final, refereed, accepted,
>published draft (the postprint), which is published in a journal, which
>will have its own copyright transfer agreement, signed with the publisher,
>and which is the primary target of the Open Access movement.
>
> "Apercus of WOS Meeting: Making Ends Meet in the Creative Commons"
> http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/3798.html
>
>Now some comments:
>
>On Sun, 16 Oct 2005, Antonella De Robbio wrote:
>
> > Dear Stevan
> >
> > I received this mail below from Roger Clarke, a Visiting Professor in Info
> > Science & Eng Australian National University, Visiting Professor in the
> > eCommerce Program, University of Hong Kong and also Visiting Professor in
> > the Cyberspace Law & Policy Centre Uni of NSW.
> > I haven't yet reply to him because I have been away and precisely I have
> > been as Italian delegate at UNESCO 33.rd general conference where we have
> > presented an Open Access resolution as Italian UNESCO Commission.
> > Well, I am leaving for Geneva at OAI4 next days where I will organise the
> > first E-LIS conference too, at the end of OAI4 event.
> > I think we must reply to this professor, and so I thought you are the best
> > OAIperson who can do it.
> > I will answer to him too, later, when I will come back to my conferences
> > in Geneva.
> > Please look at this letter, he refers to some his articles on FirstMOnday
> > and others..
> >
> > If you reply please put me in cc, so we could be coordinate in our
> > actions.
>
>My replies appear below:
>
> > Thank you!
> > Antonella De Robbio
> > E-LIS manager
> >
> > ---------- Forwarded message ----------
> > From: Roger Clarke <Roger.Clarke AT xamax.com.au>
> > To: eprints_at_dois.it
> > Subject: PrePrints and PostPrints Need a Copyright
> > Licence
> >
> > Dear ePrint Repository Manager
> >
> > The OA/ePrints/Repository movement is very important, and developing
> very well.
> >
> > But there's a gap in the strategy.
> >
> > When an ePrint is downloaded, it's likely that an implicit copyright
> > licence comes into existence. There's a lack of clarity about the
> > terms that courts might infer to be in such a licence. And that's
> > dangerous.
>
>It's not *terribly* dangerous, and courts have not much to do with it:
>Physicists
>and computer scientists have been posting "naked" papers online for over a
>decade
>and a half (hundreds of thousands of papers) with no problems.
>
>But for the unpublished, unrefereed, not-yet-copyright-protected
>preprints, it is
>a good idea to adopt one of the Copyright Commons Licenses to protect it until
>the final postprint is ready, accepted by the journal, and thenceforward
>covered by the journal's copyright agreement.
>
> http://creativecommons.org/licenses/
>
>It is somewhat misleading, though, to say that "eprints," generically, need a
>separate license: The preprints do, the postprints do not.
>
> > In a paper published in First Monday in August 2005, I analysed the
> > requirements for a copyright licence for Pre-Prints. I took care to
> > balance the interests of authors, journal-publishers, and the reading
> > public. Details of the paper are below.
>
>I have read the paper, and most of it is not pertinent to published
>postprints.
>
> > In a further short paper, I've now extended that analysis to address
> > Post-Prints as well. Details of that paper are also below.
> >
> > I'd like to submit a recommendation to the 'peak body' of ePrint
> > Repository Managers; but I haven't been able to find such an
> > association.
> >
> > So I'm approaching each ePrint Repository Manager directly, with the
> > following suggestions:
> > - recommend to authors that they make this licence-type available
> > for all PrePrints and PostPrints;
>
>Recommendations for naked preprints are welcome, but the postprints are
>already
>covered by publisher copyright.
>
> > - provide guidance and support to authors to enable them to do so
> > with a minimum of effort; and
>
>The guidance should clearly state that this is only pertinent to the
>unpublished
>preprint.
>
> > - consider making the availability of this licence-type a default
> > for all papers placed in repositories.
>
>As the primary target to Open Access Institutional Repositories is
>not unrefereed preprints but published postprints, the license should
>certainly not be incorporated as a default option. It will only create
>confusion in the case of the postprint, with the agreement already signed
>with the publisher.
>
> > THE ANALYSIS RE PRE-PRINTS:
> > Clarke R. (2005) 'A Proposal for an Open Content Licence for
> > Research Paper (Pr)ePrints' First Monday 10, 8 (August 2005), at
> > http://firstmonday.org/issues/issue10_8/clarke/index.html
> >
> > The Post-Print of the paper is at:
> > http://www.anu.edu.au/people/Roger.Clarke/EC/PrePrLic.html
> > The Pre-Print of the paper (of 1 May 2005) is at:
> > http://www.anu.edu.au/people/Roger.Clarke/EC/PrePrLic050501.html
> >
> > THE ANALYSIS RE POST-PRINTS:
> > Clarke R. (2005) 'A Standard Copyright Licence for PostPrints'
> > Xamax Consultancy Pty Ltd, 26 August 2005, at
> > http://www.anu.edu.au/people/Roger.Clarke/EC/PostPrLic.html
> >
> > THE RECOMMENDED LICENCE-TYPE IS:
> > Creative Commons - Attribution-NonCommercial-NoDerivs 2.0
> > US - http://creativecommons.org/licenses/by-nc-nd/2.5/
> > and its equivalents, e.g.
> > UK - http://creativecommons.org/licenses/by-nc-nd/2.0/uk/
> > FR - http://creativecommons.org/licenses/by-nc-nd/2.0/fr/
> > AU - http://creativecommons.org/licenses/by-nc-nd/2.1/au/
>
>These CC licenses are not applicable to articles that are already under
>a publisher's copyright agreement. Nor should anyone imply -- at a time
>when self-archiving of postprints is still only at 15%, even though 70%
>of journals already endorse postprint self-archiving, and 23% more endorse
>preprint self-archiving -- that the postprint author need do anything
>more than self-archive his postprint. Authors don't need more burdens,
>nor more worries (they are already needlessly worried about whether
>they may self-archive at all). Nor should they be advised (incorrectly)
>that in order to self-archive their postprints, they need to negotiate a
>different copyright agreement with their publishers. Nor should copyright
>licenses be applied to their preprints that might contradict the copyright
>agreement that they will be signing for their postprints.
>
>In general, copyright is a red herring for Open Access. Yes, make sure
>your text
>is copyright-protected while it's a preprint, but the postprint has no more
>copyright problem if it is self-archived than it used to have when it was not.
>That is what the copyright agreement with the publisher is for.
>
>See the eprint self-archiving FAQ items on copyright:
>
> http://www.eprints.org/openaccess/self-faq/
>
>Stevan Harnad
>
> > Other national licences are at:
> > http://creativecommons.org/worldwide/
> >
> > --
> > Roger Clarke http://www.anu.edu.au/people/Roger.Clarke/
> >
> > Xamax Consultancy Pty Ltd 78 Sidaway St, Chapman ACT 2611 AUSTRALIA
> > Tel: +61 2 6288 1472, and 6288 6916
> > mailto:Roger.Clarke_at_xamax.com.au http://www.xamax.com.au/
> >
> > Visiting Professor in Info Science & Eng Australian National University
> > Visiting Professor in the eCommerce Program University of Hong Kong
> > Visiting Professor in the Cyberspace Law & Policy Centre Uni of NSW
> >
Received on Tue Oct 18 2005 - 15:47:04 BST

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