Re: Chronicle of Higher Ed article -- the Supreme Court

From: Stevan Harnad <>
Date: Fri, 30 Mar 2001 15:48:31 +0100

On Fri, 30 Mar 2001, Steve Hitchcock wrote:

> At 12:39 30/03/01 +0100, Stevan Harnad wrote:
> >
> >(1) Distinguish the anomalous flea (the refereed research literature,
> >always an author give-away literature) from the much bigger and more
> >representative dog (books, magazines, definitely NOT an author give-away
> >literature). One (legal) size does NOT fit both.
> >
> ><>
> I'm afraid this is wishful thinking. Legally you can't make a
> differentiation on this basis.

Pluralism is alive and well at Southampton University!

Let me count out for my colleague Steve Hitchcock, and anyone else
tempted by this counsel of despair, some of the many ways you most
definitely CAN make this distinction, both de iure and de facto:

(1) Before signing it, the give-away author can modify the copyright
transfer agreement so as to retain the right to give away his text on

(2a) Even if forced to sign the most restrictive of copyright transfer
agreements, the give-away author can still give away his text online
using the Harnad/Oppenheim strategy of publicly archiving the
pre-refereeing preprint before submitting it for refereeing
and publication, and, upon acceptance, linking it to a "corrigenda"
("diff") file listing all substantive changes required to turn the
preprint into the refereed, accepted final draft.

(2a) As the authorship (if not the final draft) is still the author's,
an alternative to (2a) is to archive a substantively enhanced revision
of the accepted final draft, and append a set of "decorrigenda" listing
all the substantive changes required to turn the enhanced revision back
into the refereed accepted final draft.

All of these strategies are applicable to the "flea," the give-away
literature for which the author seeks no royalty or fee revenue from
sale their text. The strategy would of course be absurd for the "dog,"
i.e., for the much more representative majority, consisting of authors
who DO seek royalty or free revenue from the sale of their text.

The give-away/non-give-away distinction, being a substantive one in
both logic and practise, can of course be formulated in law too (and
will be). It has not been formulated explicitly until now, but only
because no flea/dog distinction was possible in the Gutenberg Era. The
expenses of print-on-paper and its distribution were such that the
non-give-away model had to be applied to all of the (unsubsidized)
literature if there was to be publication at all.

But although the flea/dog (give-away/non-give-away) distinction has not
yet been formulated explicitly in law, it is already possible for
give-away authors to free their texts online now, legally, by means of
the strategies described above.

> But it doesn't make any difference to the basic argument. Authors can
> self-archive publicly, but they must retain the rights to do so if they
> want to publish elsewhere too.

This is somewhat confused. It is not clear whether Steve is conceding
that authors can already self-archive publicly, even under the most
restrictive copyright agreement (they can, using strategy (2): no
copyright agreement can legislate backwards causation!)

Assuming that Steve is conceding that legal self-archiving is already
possible [by means of (1), (2a) or (2b)], it is unclear what "publish
elsewhere" refers to. If it is anything other than the public online
self-archiving we have been discussing, it is irrelevant to this Forum
and nolemus contendere. We are concerned here with freeing the
give-away literature online for one one and all, forever. We are not
concerned with secondary publication rights or subsidiary sales.

> The main impact of this case, whatever the outcome, will be that publishers
> of all sorts are likely to be even more rigorous in demanding ALL rights to
> works in all forms.

But for give-away authors, that will make absolutely no difference.
Hence the importance of the flea/dog, give-away/non-give-away distinction.

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 the ongoing discussion of providing free
access to the refereed journal literature online is available at the
American Scientist September Forum (98 & 99 & 00 & 01):

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Received on Wed Jan 03 2001 - 19:17:43 GMT

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