Re: Legal ways around copyright for one's own giveaway texts

From: Stevan Harnad <>
Date: Sun, 9 Jul 2000 12:59:50 +0100

On Sat, 8 Jul 2000 Christopher D. Green <christo_at_YORKU.CA wrote:

> sh> (1) Self-archive all pre-refereeing preprints. These precede submission
> sh> and are not bound by any prior legal agreement.
>cg> The American Psychological Association (and I assume most other
>cg> traditional publishers) have explicitly stated that they will not
>cg> consider submissions that have been previously published elsewhere, and
>cg> that they consider web-posting to constitute a form of publication. So
>cg> self-archiving pre-prints would make them ineligible submissions to APA
>cg> journals.

First, you missed an important distinction in the posting:

    sh> (Ask me about "embargos" and the "Ingelfinger Rule" separately:
    sh> they are not even matters of copyright and legality.)

Please note that you are now asking about embargo POLICY, not copyright
LAW, and embargo policy has no legal status. It is merely a practice
that a journal may or may not adopt, and may or may not follow (such
as not accepting articles in Spanish or on Experimental Oenology).

Nor is it the case that the "Ingelfinger Rule" (which is the
particularly restrictive embargo policy that only a few journals
practise) is the policy of "most other traditional publishers": Journal
policy runs the gamut from the Ingelfinger Rule (no prior "public
display" of the submitted paper in any form, including scientific
meetings and press releases) to the much more standard (and legally
grounded) "no prior publication in a journal or book."

The American Psychological Association (APA), the Learned Society that
publishes the highest quality and highest impact research in Psychology
does currently happen to have one of the most restrictive embargo

    but also

But the American Physical Society (APS), the Learned Society that
publishes the highest quality and highest impact research in Physics
happens to have a very liberal policy, one that, unlike the APA's, is
in accord rather than in conflict with the interests of its researchers
and research:
    see also:

The PostGutenberg Era is new; these policies will be sorted out, and I
am confident that they will be sorted out in the interests of research
and researchers rather than in the interests of preserving publishers'
current revenue streams. Remember that the APA (unlike, say, Elsevier)
is US!

Regarding the "Ingelfinger Rule":

    2.1 Preamble by Charles Phelps, Provost of University of

    The following might help those not familiar with Dr. Relman and the
    standing of the NEJM to understand their position. They have a
    market stature so great that it dominates all other medical
    journals, and probably all other journals in the world (possibly
    only excluding Science and Nature). Their citation index is about
    20 per article; the next best (in a not too recent look) was JAMA
    at 12. Most other journals are in the realm of 2 - 4 or lower in
    the field. Thus the NEJM has an extraordinary stature and power
    that they are obviously loathe to give up. The new medium threatens
    them more than any other publisher/journal.

    Dr. Relman (and his predecessor, Franz Ingelfinger, MD) carved in
    stone what was once known as the Ingelfinger Rule, which is now
    commonplace: "We won't consider a manuscript for publication in the
    NEJM if it's been published elsewhere." They have a very strict
    definition of "elsewhere" to include all sorts of things that many
    people would not consider publication. Their current stature and
    the tight control of pre-release of content are self reinforcing
    under current rules. They highlight "top" articles with a
    concurrent editorial ("commentary") and often a press release. This
    keeps NEJM articles in high visibility and they are (because of the
    very high and hence attractive stature of the journal and very
    stringent refereeing standards) of very high quality generally.

    Obviously the NIH proposal threatens a part of this because the
    immediate newsworthiness of documents already available on an e -
    server diminishes. Yet a widespread and widely used NIH system
    would make it impossible for the NEJM to boycott manuscripts placed
    on the e-server (just as the physics journals could not boycott
    articles posted on Los Alamos). This is the major source of Dr.
    Relman's concern.

This is the Relman critique of open archiving:

    Relman, A. (1999) The NIH "E-biomed" Proposal -- A Potential Threat
    to the Evaluation and Orderly Dissemination of New Clinical Studies
    [Editorial]. The New England Journal of Medicine 340(23) June 10,

And this is my rebuttal, in which the above Phelps passage appeared:

    Harnad, S. (2000) E-Knowledge: Freeing the Refereed Journal Corpus
    Online. Computer Law & Security Report 16(2) 78-87.

> sh> (2) After refereeing, revision, and acceptance, if the copyright
> sh> transfer agreement asks for a transfer of all rights for the final
> sh> refereed draft to the publisher, first propose modifying the wording of
> sh> the agreement: Agree to transfer to the publisher all rights to SELL
> sh> the paper, on-paper or on-line; retain only your right to self-archive
> sh> it for free on-line.
> sh> (3) If the modified agreement is accepted by your publisher,
> sh> self-archive the post-refereeing postprint.

>cg> Fine, but this is completely dependent on the publisher's willingness
>cg> to cooperate. APA will not.

Give them time. They are a Learned Society, i.e., they are US.
Meanwhile, move on to (4):

> sh> (4) If the modified agreement is not accepted by your publisher, sign
> sh> the original agreement and self-archive only a list of the changes that
> sh> have to be made in the (already-archived) preprint to transform it into
> sh> the postprint.
>cg> Usually these agreements say something like "substantively" in them to
>cg> block one from changing a single word (or a few words), and then
>cg> publishing them elsewhere.

Correct. But we are not talking about making minor changes in the final
draft and publishing it elsewhere! We are talking about ADDING to the
already-archived, unrefereed preprint, a list of the changes that need
to be made to turn it into the final draft!

> sh> Why is it so simple to do this legally? Because copyright is designed
> sh> to protect intellectual property from theft; your paper is your
> sh> intellectual property. If you want to give it away, that is your
> sh> prerogative. Copyright agreements were never designed with give-away
> sh> work in mind; they were designed for royalty/fee-based work where the
> sh> author and the publisher have a common stake in the sales, and in
> sh> preventing theft.

>cg> Perhaps, but that doesn't keep people (publishers) from exploiting the
>cg> advantages the law gives them, even if unintentionally.

But none of the embargo policy points you have mentioned have any status
in the law!

Note that, according to the law, writing something down on paper
already constitutes "publication." So, a fortiori, does circulating
paper drafts to colleagues, presentations at conferences, etc. Do you
imagine that there is any way, at the point of acceptance and copyright
assignment of the final, refereed draft, to word a copyright agreement
so as to make the author legally prosecutable for having done any of
those things previously?

Of course not. Copyright agreements are not RETROACTIVE to earlier
drafts of a work, except inasmuch as they forbid PRIOR signed copyright
agreements, assigning the same work to prior publishers. This all
really concerns SALES of the work, of course. This is why the
"give-away" research literature (and the "Faustian Bargain") represent
such an anomaly in the world of publishing and copyright. Such
give-away authors still want copyright protection from (1) theft of the
AUTHORSHIP of their work, but they want no "protection" at all from (2)
theft of the WORK itself. Hence "copyright" (in French: "droit
d'auteur": "author's right") cannot be effectively invoked AGAINST
them, to prevent them from giving away their work (but not the right to
sell it) before ever submitting it for refereeing.

[Suggestion: Don't confuse either:

    (a) "intellectual property" issues in copyright law (which, for
    giveaway authors, concern only protection from theft of authorship
    by other authors, not protection from theft of text by readers, as
    there are no author-plans for sale here!)


    (b) "fair use" issues in copyright law (which concern the reader
    and reader-institution, not the author)

with the matters under discussion here.]

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

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Received on Mon Jan 24 2000 - 19:17:43 GMT

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