Re: Ingenta to offer OAI eprint service

From: Stevan Harnad <>
Date: Sat, 20 Jul 2002 04:04:41 +0100

>> No. Someone is (passively) failing to provide free access to their own
>> contributions to those journals, and that someone is the author of each
>> and every article appearing therein (with the exception of a growing
>> number of physicists and a few other disciplines at last beginning to do
>> the right thing!).

On Fri, 19 Jul 2002, Richard Stallman wrote:

> I would like to believe this, but my imperfect memory of the
> publication contract I got from CACM seems to say that authors are not
> allowed to do this if they sign such contracts. (That is part of the
> reason I always insist on renegotiating them.)

Here are some excerpts from the BOAI self-archiving faq that describe
what to do in such cases:

What about copyright?

    The author holds the copyright for the pre-refereeing preprint,
    so that can be self-archived without seeking anyone else's
    permission. For the refereed postprint, the author can try to
    modify the copyright transfer agreement to allow self-archiving, or,
    failing that, can append or link a corrigenda file
    to the already self-archived preprint.
    See " Is self-archiving legal? "
    "What if the publisher forbids self-archiving the preprint? "

Is self-archiving legal?

    Texts that an author has himself written are his own intellectual
    property. The author holds the copyright and is free to give away
    or sell copies, on-paper or on-line (e.g., by self-archiving), as
    he sees fit. For example, the pre-refereeing preprint can always be
    legally self-archived .

    Self-archiving of one's own, non-plagiarized texts is in general
    legal in all cases but two. The first of these two exceptions is
    irrelevant to the kind of self-archiving BOAI is concerned with,
    and for the second there is a legal alternative.

    Exception 1: Where exclusive copyright in a "work for hire" has
    been assigned by the author to a publisher -- i.e., the author has
    been paid (or will be paid royalties) in exchange for the text --
    the author may not self-archive it. The text is still the author's
    "intellectual property," in the sense that authorship is retained by
    the author, and the text may not be plagiarized by anyone, but the
    exclusive right to sell or give away copies of it has been transfered
    to the publisher.

    Exception 1 is irrelevant to BOAI , because BOAI is concerned only
    with peer-reviewed research, for which the author is paid nothing,
    and no royalty revenue is expected, sought, or paid.

    Exception 2: Where exclusive copyright has been assigned by the
    author to a journal publisher for a peer-reviewed draft, refereed
    and accepted for publication by that journal, then that draft may not
    be self-archived by the author (without the publisher's permission).

    The pre-refereeing preprint, however, has already been (legally)
    self-archived. (No copyright transfer agreement existed at that time.)

    So in those cases where the publisher does not agree to modify
    the copyright transfer agreement so as to allow the self-archiving
    of the refereed final draft ("postprint"), a corrigenda file can
    instead be self-archived, alongside the already archived preprint,
    listing the changes that need to be made to make the pre-refereeing
    preprint conform to the refereed postprint.

What if the publisher forbids preprint self-archiving?

    The right to self-archive the refereed postprint is a legal matter,
    because the copyright transfer agreement pertains to that text. But
    the pre-refereeing preprint is self-archived at a time when no
    copyright transfer agreement exists and the author holds exclusive and
    full copyright. So publisher policy forbidding prior self-archiving
    of preprints is never a legal matter, but merely a journal policy
    matter (as it would be if the journal were to forbid the submission
    of papers by authors with blue-eyed uncles!).

    This policy goes by the name of the " Ingelfinger Rule ," originally
    invoked by the Editor of the New England Journal of Medicine (NEJM),
    Franz Ingelfinger, in order to protect public health (and the NEJM's
    priority) from any publicity about unrefereed findings prior to

    The Ingelfinger Rule (sometimes also referred to as a " prepublication
    embargo ") is accordingly not a copyright matter, but a journal
    submission policy: "We will not consider for publication any preprint
    that has been previously self-archived."

    BOAI makes no recommendations to authors regarding compliance with
    such policies, except to note that (1) the Ingelfinger Rule is not
    a legal matter, (2) the number of journals invoking the Ingelfinger
    Rule is rapidly diminishing in the face of self-archiving pressure
    from authors in the interests of research progress (Nature, for
    example, has dropped it,
    and other journals are following suit) and (3) the Ingelfinger Rule
    was probably never enforceable in any case.

See also:
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):

Discussion can be posted to:

See also the Budapest Open Access Initiative:

and the Free Online Scholarship Movement:
Received on Sat Jul 20 2002 - 04:04:41 BST

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