Legal ways around copyright for one's own giveaway texts

From: Stevan Harnad <>
Date: Tue, 22 Feb 2000 11:17:17 +0000

NOTE: A complete archive of this ongoing discussion of "Freeing the
Refereed Journal Literature Through Online Self-Archiving" is available
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---------- Forwarded message ----------
Date: Tue, 22 Feb 2000 10:51:51 +0000 (GMT)
From: Stevan Harnad <>
To: Terry Martin <>,
    "Bernard J. Hibbitts" <>
Cc: Stephen Saxby Law EJ <>,
    Hal Varian EJ <>,
    Ann Okerson <>,
    Jennifer Bankier EJ <>
Subject: Re: Legal ways around copyright for one's own giveaway texts

Dear Bernard & Terry,

I'd like to hear your US legal opinion on Charles's UK legal opinion
about the following legal way to get around copyright restrictions on
the open online self-archiving of one's refereed papers.

First, what Charles said in reply to my query. And below it, what I
myself have written in a recent D-Lib article.

The rationale is that copyright laws were drafted to protect (1)
intellectual ownership [not contested here] and (2) proprietary text,
intended for sale. The laws were never intended for give-away literature.
Consequently, they cannot really cope with "self-piracy," which is so
unlike the "allo-piracy" that is involved in the theft and/or sale of
the products of OTHERS (texts, software, inventions). Here authors
merely wish to GIVE away to the world, free, the intellectual
property they have likewise given to their publisher (to sell).

Read on:

---------- Forwarded message ----------
Date: Thu, 17 Feb 2000 18:18:43 +0000
From: Charles Oppenheim <>
To: Stevan Harnad <>,
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

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
Leics LE11 3TU

Tel 01509-223065
Fax 01509-223053


In my D-Lib article I formalized this as follows. (Note the distinction
between my recommendations for how to deal with copyright, a legal
matter, versus how to deal with embargoes and submission restrictions,
which are not legal matters but mere (arbitrary) journal policies):

    Harnad, S. (1999) Free at Last: The Future of Peer-Reviewed Journals.
    D-Lib Magazine 5(12) December 1999

    ...Copyright transfer agreements today are hence merely a Faustian
    means of holding the literature hostage to S/L/P
    [Subscription/Site-License/Pay-Per-View] tolls. Authors sign them,
    because they need to have their papers peer-reviewed and certified
    as such (and at the highest possible level of the QC/C
    [Quality-Control/Certification] hierarchy of journals), for the
    sake of their research impact, and hence their careers. But it is
    not the S/L/P costs and the access barriers that fulfill that need,
    in the era of open self-archiving, it is the QC/C alone. That's all
    that Give-Away authors need. That's all they ever wanted. The open
    archiving can do the rest, and far better than the Gutenberg system
    ever could.

    So authors should transfer to their publishers all the rights to
    sell their papers, in paper or online, but they should retain the
    right to self-archive them online for free for all. Many publishers
    will agree -- the American Physical Society
    <> being a model in this
    respect -- because their scholarly/scientific goals are in harmony
    with those of their authors and readers. But with those publishers
    whose copyright agreement explicitly forbids the public
    self-archiving of the peer-reviewed final draft, the solution is to
    self-archive the preprint at the time it is first submitted for
    publication, and then once it is accepted, simply to archive a
    "corrigenda" list consisting of the changes that went into the
    revised final draft; alternatively, a further revised, enhanced
    draft, going substantively beyond the accepted, final draft, with a
    fuller reference list, Hyperlinks, more data and figures added,
    etc., can be self-archived, together with a "de-corrigenda" list of
    what in this new edition was not in the final accepted draft.
    Either way, the handwriting (or rather the skywriting) is on the

    This gets around copyright restrictions (note that analogies with
    online piracy of text, music and software are irrelevant because we
    are speaking of "self-piracy" here). A further potential obstacle
    is an embargo policy like the one the New England Journal of
    Medicine (see <
    Hypermail/Author.Eprint.Archives/0019.html>) practises under the
    name of the "Ingelfinger Rule" (see
    and that journals like Science,
    likewise practise.

    I don't think I need to spell out for Web-savvy authors how easily
    arbitrary and self-serving policies like this can be gotten around
    by suitable cosmetic measures on one's self-archived preprint. In
    any case, I doubt that journal editors and referees (who, after
    all, are us), will long collaborate with policies that are no
    longer either justified or necessary, being now so clearly designed
    solely in the interest of protecting current S/L/P revenue streams
    rather than in the interest of disseminating research. Besides,
    journal embargo policies, unlike copyright agreements, are not even
    legal matters.

    I don't think there is any doubt in anyone's mind as to what the
    optimal and inevitable outcome of all this will be: The Give-Away
    literature will be free at last online, in one global, interlinked
    virtual library (see
    <>), and its
    QC/C expenses will be paid for up-front, out of the S/L/P savings.
    The only question is: When? This piece is written in the hope of
    wiping the potential smirk off Posterity's face by persuading the
    academic cavalry, now that they have been led to the waters of
    self-archiving, that they should just go ahead and drink!

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 "Freeing the
Refereed Journal Literature Through Online Self-Archiving" is available
at the American Scientist September Forum (98 & 99):
Received on Mon Jan 24 2000 - 19:17:43 GMT

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