Re: Copyright: Form, Content, and Prepublication Incarnations

From: Albert Henderson <chessNIC_at_COMPUSERVE.COM>
Date: Wed, 24 Oct 2001 08:53:46 -0400

Harnad's theory below depends on several false assumptions:

1. The law does not apply equally to print and nonprint works,
        or to academic and non-academic authors.

        It seems to me that we are guaranteed equal protection
        under the law.

2. Released on the Internet, a work cannot be withdrawn
        from further distribution by the copyright owner.

        Just as a print publisher can withdraw unsold
        copies of a book from sale, a server can delete
        a work and prevent further circulation.

3. Journal authors 'give away' their work.

        They exchange their copyrights for values such as
        dissemination and peer-recognition -- an exchange
        even if no money changes hands.

4. A preprint of an article and its final form, which may
        possibly not differ in any way, are different
        enough, by virtue of distribution means, to sustain
        separate copyright status.


        Best wishes,

Albert Henderson

-------------Forwarded Message-----------------

To: Multiple recipients of list,
Date: 10/23/2001 1:32 AM

RE: Copyright: Form, Content, and Prepublication Incarnations

On Mon, 22 Oct 2001, Peter Suber wrote:

> [forwarding from Rainer Stumpe.]
> Scott Melon asked "What is copyrighted - the science or the look? Is
> there a difference?"
> The answer is: both. When an author has signed a standard copyright
> transmission form, the publisher has all rights to produce copies of the
> submission. Only the moral rights are retained by the author. If the
> author has deleted the term "exclusive copyright" in the transfer form,
> he/she may produce copies (print or electronic) in addition of the
> publisher.
> The copyright to the layout and typography is without question with the
> publisher.
> The delicate issue is, that by transferring the copyright on a journals
> article to the publisher exclusively, the author may not even post the
> original manuscript in different layout and typography on the web or
> duplicate it in print.
> A brief discussion of copyright issues, including links to the current
> versions of copyright laws can be found at
> Enjoy reading the law!
> Rainer Stumpe
> European Science Publisher

I am forwarding this to Charles Oppenheim, for his view. My own is
this: This is Gutenberg (on-paper) reasoning, and it is simply moot in
certain respects in the (on-line) Post-Gutenberg medium.

The question, as put, is, Does the copyright of a text pertain to just
the form or the content? On this, I plead nolo contendere, but on
the SUBSTANTIVE question, specific to the only literature with which
the self-archiving initiative is concerned, namely, the author-giveaway
refereed-research literature, the following is the only case that
needs to be brought into focus:

(1) The author of an unrefereed report of scholarly/scientific research
does the research, writes the manuscript, and publicly self-archives
it on the Net as an unrefereed, unpublished preprint.

(2) This means, for all intents and purposes, that that particular text
has gone irreversibly into the public bowels of the Internet, a Pandora's
box that can never again be fully closed, no matter what anyone tells

(3) Pause: Has there been any possible violation of copyright yet
(assuming the work was not plagiarized!)? Obviously not. Copyright has
not been transferred. Copyright for that unrefereed, unpublished
preprint rests wholly with its author.

(4) At the time of this public self-archiving or some time thereafter,
that same unrefereed, unpublished preprint is submitted for refereeing
to a peer reviewed journal.

(5) The submitted manuscript is refereed; it may or may not undergo
several rounds of revision and re-refereeing; and it may or may not
eventually be accepted for publication.

(6) If and when it is accepted for publication, THAT final draft,
including the value added by the refereeing process (and perhaps also
the editing, markup, formatting), is the one on which the author is
asked to transfer copyright to the publisher.

(7) (Parenthetically, the author of this kind of work should transfer
to the publisher all rights to sell, lease, or give away that draft,
on-paper or on-line, in perpetuo, with the exception of the author's
write to publicly self-archive that refereed final draft too, just as
its unrefereed precursor had been publicly self-archived. If this one
modification of the copyright transfer agreement is accepted by the
publisher [and many publishers will accept -- all one need do is ask]
then there is no further issue to discuss. We now proceed to (8) to
cover that minority of cases where the publisher declines to publish
unless all rights are transferred.)

(8) If (7) is refused, the author merely self-archives and links a
corrigenda file to the already self-archived preprint, indicating
publicly what changes need to made in the already publicly archived
preprint in order to make it equivalent to the final draft.

So you see, for this particular, anomalous, author give-away literature,
the question of whether it is the form or the content for which
copyright has been tranferred does not even come up.

N.B. Do not confuse this copyright issue, which is a legal matter, with a
related, nonlegal, submission-policy issue, the "Ingelfinger Rule."
Journals that happen to have this submission policy proclaim that they
will not referee or publish submissions that have already been
self-archived publicly on the Net.

There are things to be said about such policies, and ways to get around
them, but as they have nothing to do with the copyright question, I will
just point that out, and leave it at that. See:

    Harnad, S. (2000) E-Knowledge: Freeing the Refereed Journal Corpus
    Online. Computer Law & Security Report 16(2) 78-87. [Rebuttal to
    Bloom Editorial in Science and Relman Editorial in New England
    Journalof Medicine]

    Harnad, S. (2000) Ingelfinger Over-Ruled: The Role of the Web in
    the Future of Refereed Medical Journal Publishing. Lancet
    Perspectives 256 (December Supplement): s16.

    5. PostGutenberg Copyright Concerns

    6. How to get around restrictive copyright legally

Stevan Harnad

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 amsci site.

Discussion can be posted to:
Received on Wed Oct 24 2001 - 14:21:01 BST

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