Re: Self-archiving, academic staff, universities & intellectual property

From: Stevan Harnad <>
Date: Sun, 23 Jun 2002 16:08:54 +0100 (BST)

On Sun, 23 Jun 2002, Jim Till wrote:

> On Sun, 23 Jun 2002, Stevan Harnad wrote [in part, in response to
> Richard Poynder]:
> sh> What one wishes to conceal, one does not publish; what one publishes,
> sh> one does not wish to conceal. The only research at issue here is the
> sh> kind researchers wish to publish: the peer-reviewed research
> sh> literature.)
> In the biomedical field (and, especially, in the area of biotechnology),
> the issue of filing for patent protection of intellectual property prior
> to publication in the peer-reviewed research literature can be a
> significant one (if a possible "invention" is involved).

Yes, but the point here is that, significant though it may be for OTHER
concerns, this issue is completely irrelevant for the concerns Richard
Poynder was inquiring about, namely, whether universities might be
thinking of charging tolls for access to their peer-reviewed research
output. Richard asked whether, by way of ANALOGY with the way
universities may wish to derive potential patent revenue by concealing
certain research findings, they may wish to derive potential revenue
by charging access tolls to its own peer-reviewed research papers,
archived in its own Eprint Archive.

And my reply was that this is an incorrect (indeed incoherent)
analogy. The reason was that in the one case, potentially patentable
research, the findings are NOT reported in peer-reviewed publications:
the revenues are derived from their concealment. In the other case,
peer-reviewed publication, the findings ARE reported, and the revenues
are derived from their impact. Blocking access in order to squeeze out
some (tiny) access-toll revenues would be absurd, at the cost of the
lost research impact, and the resulting lost research funding revenue
(which pays a good deal of university overhead).

To summarize (again): Blocking access to patentable findings so that
tolls can be derived from the sale of potential products derived from
them makes sense; blocking access to the publication of peer-reviewed,
non-patentable findings in order to collect access tolls makes zero sense.

> At present, I suspect that even academically-oriented research groups,
> institutes and networks in this field would expect authors to file for
> patent protection of IP before self-archiving a preprint (e.g. one that's
> intended for subsequent publication in the peer-reviewed literature).

Of course. Which is why it must be repeated over and over that this Forum
is exclusively about peer-reviewed research (20 thousand journals' worth,
2 million papers annually) and its precursor preprints. It is about
research that WANTS to be made public, through publication, and its
resulting impact. It is NOT about research that does not want to be
made public (or does not YET want to be made public); that research is
irrelevant to the open-access movement, by definition. If you would not
want to submit it to a peer-reveiewed journal (or not yet), then you
would not want to self-archive it either.

> There can be delays involved in the process of filing for patent
> protection. This can be a barrier in Canada, which uses a first-to-file
> approach to the protection of IP. The tech-transfer office of the
> university (or research institute or research network) needs to be
> well-supported, so that a backlog of requests for attention doesn't pile
> up, and self-archiving of preprints (or, submission to an open-access
> peer-reviewed journal, such as BioMed Central's new Journal of Biology)
> isn't unduly delayed (e.g. for some weeks, or even months).

Again, this is completely irrelevant. If research is being held back
from publication waiting for a patent, then that is not the research we
are concerned about here. The research we are concerned about here is
seeking publication in a peer-reviewed journal -- seeking to maximize
access to itself so as to maximize its research impact. (Talking about
research to which the author and his institution are intentionally
withholding access in this context is like talking about the concerns
of those who wish to shed ugly pounds in the context of movements to
combat world hunger!)

> BTW, the Journal of Biology (see: permits copyright
> to be retained by the author. The editorial board of the Journal of
> Biology includes names of people who've played major roles in efforts to
> provide open access to the health-related research literature, such as
> Harold Varmus, currently at Memorial Sloan-Kettering Cancer Center, USA.

Again, as I said in the prior posting, copyright is not a problem for
the literature in question; it is a red herring. Dwelling on it merely
deters us from the real task at hand, which is freeing online access
to the peer-reviewed research in question by self-archiving it. Please,
let as uncross these crossed wires between patents and copyright and
open-access and do what needs to be done. Sensible changes in copyright
transfer are welcome and will no doubt prevail, but they are unnecessary
for the purposes at hand and groundless worries about them are merely
holding us back from the optimal and the inevitable.

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):

Discussion can be posted to:

See also the Budapest Open Access Initiative:

and the Free Online Scholarship Movement:
Received on Sun Jun 23 2002 - 16:08:54 BST

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