Re: Copyright: Form, Content, and Prepublication Incarnations

From: Stevan Harnad <>
Date: Wed, 24 Oct 2001 16:18:59 +0100

On Wed, 24 Oct 2001, Albert Henderson wrote:

> 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.

No substantive point whatsoever follows from these two statements
relative to the issue under discussion: "Is there any way to legally
withdraw or prosecute persisting copies of a message that has already
been disseminated publicly on the Internet?"

If there is a law that says it is a crime to broadcast in English in
Quebec, and the anglo radio and TV airwaves from the outside world just
keep wafting in, who is the law to be applied to, and how?

If someone registers the name "Albert Henderson" as a trademark,
do you thereafter become liable for continuing to use it?

If someone tells a story publicly, and it is subsequently classified
as a state secret, how are you going to recall it, or stop it from
continuing to be told?

There are enforceable laws and unenforceable laws. There's not much
point wasting time talking about the latter.

(Whether there's any point FORMULATING unenforceable laws at all
depends on the further question of whether or not they are ethically
justifiable; if they are, then they could still have some moral sway,
even if they are not enforceable. I leave it to the readership of this
list to adjudge the ethical merits of trying to use post-hoc copyright
law to prevent researchers from making their own prior, non-value-added
research findings public online. If it is adjudged ethically
justifiable to try to prevent this, then perhaps a formal injunction
against self-archiving unrefereed preprints will have some moral sway
with those who feel that way. I certainly don't. Nor do the authors of
the 150,000 papers in the Physics Archive. Nor, I suspect, will most of
the authors of the 2,000,000,+ refereed articles published annually in
the 20,000+ refereed journals of the world, once they have sorted
through all the confusion and misunderstanding that is still
mysteriously rife in this otherwise trivial domain.)

> 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 Released on the Internet, a work cannot be withdrawn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.

A URL can perhaps be removed from its original site if the author
acquiesces, and if that site is still under the control of the
self-archiving author. But when it comes to the countless mirrors,
caches, back-up archives and local/global downloads netwide, and their
own respective continuing lifelines and sequelae -- i.e., the "further
circulation" -- forget it!

> 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.

They transfer copyright, if forced to do so, in exchange for the
quality control (peer review, donated free by the peers, administered
at some cost by the journal) and its quality-control label (the journal
name). The dissemination is another matter, PostGutenberg. I will not
repeat the logic (and economics) of this for Albert yet another time.
It has been said and written too many times, for those who have ears to
hear and eyes to see. Suffice it to say that the Gutenberg quid-pro-quo
Albert describes above is obsolete PostGutenberg.

> 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.
> Ridiculous.

That is not at all what is at issue. What is at issue is the legal and
practical status of the already publicly archived, pre-submission,
pre-refereeing, pre-acceptance, pre-publication draft (a matter of
timing, not comparative content).

(It is the failure to keep such trivial but telling details in focus
that will perplex the future historians of this sluggish transitional
era. Were the persistent misunderstandings and misinformation merely
the result of slow-uptake and habit hysteresis, or did conflict of
interest and wishful thinking play a role too?....)

But as long as we are pondering the ridiculous (hypothetical) case where
the DIFF between the preprint and the postprint = 0 (i.e., where the
publisher's added value, beyond the journal-name, is likewise = 0), one
cannot help but ask why any researcher, who does not seek or get any
income from the sale of his give-away text, and whose income depends
instead on the accessibility, visibility, uptake and impact of his text,
would want to consent to access/visibility/uptake/impact-BLOCKAGE by

    1.2. Distinguish income (arising from paper sales) from impact (arising from paper use)

The answer, of course, is that the DIFF is very rarely = 0. There is
true value, essential value, added by peer review (and that, and only
that, is what the journal-label betokens).

But the true costs of that essential service can be covered by a small
portion of the savings from the cancellation of all access-tolls,
should that day ever come. So there is no quid-pro-quo here either.

Ridiculous indeed...

Stevan Harnad
Departement de Psychologie
Universite du Quebec a Montreal
CP 8888 Succursale Centre-Ville
Montreal, Quebec, Canada H3C 3P8

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.

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Received on Wed Oct 24 2001 - 16:20:02 BST

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