PostGutenberg Copyrights and Wrongs for Give-Away Research

From: Stevan Harnad <harnad_at_COGPRINTS.SOTON.AC.UK>
Date: Thu, 31 May 2001 09:02:57 +0100

On Wed, 30 May 2001, Albert Henderson wrote:

> on 30 May 2001 "Peter D. Junger" <junger_at_SAMSARA.LAW.CWRU.EDU> wrote:
> > It is unusual for authors to ``transfer'' the entire copyright in an
> > article to a journal. Normally all that is assigned is the right of
> > first publication in a journal.
> >
> > Is the situation really so different in the case of scientific journals?
> I am only speaking of learned journals. Your "normally"
> refers to mass media and first serial rights. Learned
> journal contracts that I have seen generally transfer
> the copyright "as a work made for hire" and return to
> the author limited rights, for example, to use the
> material in class and in a monograph of which the author
> is the sole originator.

Would it not be odd, and ironic in the extreme, if the category of
texts that are the most remote from being "work made for hire" --
namely, the give-away pre- and post-refereeing research reports that
were most decidedly NOT written for any royalty, fee or salary in
exchange for their writing -- indeed proved to be the ONLY ones
vendors could hold hostage in this way?

I don't believe it for a minute. Nor do I believe that, should anything
like this happen to be technically true in some construal, that it
would be enforceable in any way. It would only have been a glaring
anomaly that no one had noticed or done anything about until now --
because in the Gutenberg Era, with the true associated expenses of
on-paper production and dissemination, there was nothing that COULd
have been done anyway, whereas in the PostGutenberg Era of public
on-line archiving there most decidedely is...

> I am saying that after the transfer of copyright, the
> article must be withdrawn unless the agreement provides
> for continued publication of the preprint form of the work.

This is all predicated on prior PUBLICATION, where "publication" is
constured to be the same sort of thing as that "secondary"
publication which now calls for the withdrawal of the primary one.

That's all Gutenberg gibberish. Legally, even a hand-written copy on
toilet paper or a lavatory wall is "publication" (and protected by
copyright); so is a radio reading, which can be taped by countless
listeners. What on earth would the author's obligation to "withdraw"
all of that from the ether amount to?

Well exactly the same is true of preprint archiving. Once it is in
the bowels of the Internet -- mirrored, cached, downloaded, etc., all
over the planet, there is not a power under the PostGutenberg sun
that could have withdrawn it. So forget about "liability" once the
cybercat is out of the bag.

Try writing a law to enforce the unenforceable, indeed the

No, this is Gutenberg gibberish being naively (but mischievously)
invoked in a PostGutenberg age to which it no longer has any
relevance or applicability. Albert is merely relying upon (and
encouraging) the sluggishness of our generation's minds and habits,
to retard the inevitable and unstoppable descent of the token,
to the eternal advantage of research and humanity, if not certain
vendors' traditional revenue streams.

> The claims, as I read them, that the preprint is somehow
> different than the work affected by the copyright transfer,
> are unrealistic if not downright misleading. They remind
> me of the folks who argue that 5th amendment protections
> against self-incrimination support not filing tax returns ...

Think again. Try reconstruing it instead as applying to (say) the
retroactive erasure of all copies of notes taken at the scientific
conference where these "written-for-hire" results were first reported.
(Polemical images cut both ways.)

> My impression, that the owner of the Internet server
> may be liable, refers to the period following the
> transfer of copyright and notice to the server. Continuing
> to publish is a act of contributory infringment.

Moot, once it's out in the ether.

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):

You may join the list at the site above.

Discussion can be posted to:
Received on Wed Jan 03 2001 - 19:17:43 GMT

This archive was generated by hypermail 2.3.0 : Fri Dec 10 2010 - 19:46:07 GMT