Re: Do PrePrints and PostPrints Need a Copyright Licence?

From: Stevan Harnad <harnad_at_ecs.soton.ac.uk>
Date: Tue, 18 Oct 2005 16:14:54 +0100

My colleagues Steve Hitchcock and Charles Oppenheim are right and I am
wrong (see below). It is better not adopt a CC license even for the
self-archived preprint (and not just not-adopt one for the self-archived
postprint, as I had mistakenly suggested).

In other words, Roger Clarke's advice is erroneous and should not be
followed in either case. The implicit copyright is protection enough
for the self-archived preprint, and no further rights need be ceded to
the user as all the requisite OA rights come with the territory, once
a full-text is self-archived free for all on the web.

Self-archive and leave well enough alone. CC licenses are for other
purposes, not those of OA self-archiving of either preprints or
postprints. (E.g., they are fine for OA publishing.)

Stevan Harnad

On Mon, 17 Oct 2005, Charles Oppenheim wrote:

> If I offer something under a CC licence and then subsequently agree to a
> more restrictive publisher's licence, I have set up an incompatibility...
> The earlier licence over-rides the second. In other words, any subsequent
> more restrictive licence with a publisher would have no validity and
> would be unenforceable by the publisher. Mind you, the publisher would
> be perfectly entitled to be annoyed with the author, and may refuse to
> publish the article and/or refuse to ever have dealings with that author
> again in the future.

On Mon, 17 Oct 2005, Steve Hitchcock wrote:

> 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 - 16:52:01 BST

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