Re: Garfield: "Acknowledged Self-Archiving is Not Prior Publication"

From: Stevan Harnad <>
Date: Mon, 2 Sep 2002 16:28:17 +0100

On Mon, 2 Sep 2002, Joseph Pietro Riolo wrote:

> On Sat, 31 Aug 2002, Stevan Harnad <> wrote:
> >
> > These two papers by Eugene Garfield -- founder of the Institute for
> > Scientific Information, Current Contents, Science Citation Index,
> > and originator of the Citation Impact Factor -- might be of interest to
> > the Open Access community:
> >
> > "I believe that posting and sharing one's preliminary publications
> > [is] an important part of the peer... review process and does
> > not justify an embargo by publishers on the grounds of 'prior
> > publication'. It was not the case before the Internet, and except
> > for unusual clinical situations, has not changed because of the
> > convenience of the Internet." (Garfield, 2000)
> Apparently, both Stevan Harnad and Eugene Garfield are ignorant of
> the definition of "publication" in the U.S. Copyright Law:
> "Publication" is the distribution of copies or
> phonorecords of a work to the public by sale or other
> transfer of ownership, or by rental, lease, or lending.
> The offering to distribute copies or phonorecords to a
> group of persons for purposes of further distribution,
> public performance, or public display, constitutes
> publication. A public performance or display of a work
> does not of itself constitute publication.
> (Title 17, Chapter 1, Section 101.)
> Before Internet, submitting an article to a review committee is
> not considered as a publication because the author does not intend
> for the public to see the article and does not allow the committee
> to further distribute copies. However, when an author puts his
> article on Internet without any control over who can see his article
> and distribute copies of his article, his article is considered as
> a publication.

This is a red herring, conflating researchers' criteria for
what counts as a formal publication with trade criteria for
protecting toll-revenues.

First (but irrelevantly) there are glaring logical incoherences in
the above definition of "publication" in U.S. Copyright Law when it
comes to online digital works. I will not bother pointing out all the
counterexamples and non-fitting cases that this quoted definition
obviously cannot handle, because there is a far more pertinent reason
why all of this is irrelevant to the literature that Gene Garfield and
I are talking about here -- refereed research publications.

When it comes to the definition of "publication" in the only sense that
is relevant to the authors of this special literature -- "publishing"
as in "publish or perish" -- no promotion committee or grant-funding
panel will count vanity-press self-publication as "publication,"
regardless of whether the author has self-published one copy on a piece
of paper shown to one colleague or has spammed the entire internet with
it: Self-publication is not publication insofar as researchers' careers
and reward systems are concerned (with one prominent exception, namely,
the establishment of priority as to who actually made a finding first
-- but for that, even one copy whose date of creation can be objectively
authenticated is enough).

The reason is simple: Far, far too much research is done, and it varies
far too wildly in quality, for researchers to be able to trust unfiltered
self-reports, or to evaluate it all for themselves in each instance, in
deciding what to read, believe, use. To count as publications in
academia's formal publish-or-perish sense -- the only sense that
matters for research -- research-reports have to successfully pass the
self-corrective "filter" of peer-review, and be duly certified by the
publisher's imprimatur as having done so, through being accepted for
publication (sic) by a peer-reviewed journal (preferably an established
one of known quality standards).

Until they have done so, all papers are just unrefereed, unpublished
preprints (and, if cited in a published work, must be clearly identified
as such), whether they have been seen only by one pair of eyes or have
been advertised far and wide in infomercials on international TV.

THIS is the sense of publication that Gene is talking about and this
should already have been obvious from the fact that he uses the word
"publication" in both senses in the very same sentence above, in
answering (in the negative) his own question, namely, "Is Acknowledged
Self-Archiving Prior Publication?" And he is addressing this question
to fellow-researchers -- authors, referees, and editors -- not to drafters
of copyright law.

WHY was this question not addressing copyright law or copyright
lawyers? Because, if you will look carefully at every one of the criteria
invoked in the legal "definition" of publication above -- "sale, transfer
of ownership, rental, lease, lending" -- every single one of them is
utterly irrelevant to the special, anomalous literature which is the only
one of which we are speaking here. For refereed research publications are
all author give-aways: Their authors do not seek to sell, rent, lease,
lend or otherwise transfer their ownership. Their "moral ownership" --
i.e., the fact that it is they who wrote them and not someone else --
is of course retained by these special authors, as by all authors. But
the texts themselves are all given away; not a penny of royalties or
fees or other form of income from their sale/rental/lease/lending is
received or sought by their authors.

Hence these authors, and the users of this special literature (namely,
other researchers, their institutions, and their research-funding
agencies) have no interest whatsoever in copyright "protection" for
sale/rental/lease/lending. Apart from copyright protection of their
authorship -- which they can already assert on the one copy they submit
to be considered for publication (sic) by a refereed journal -- these
authors are not in need of copyright law's elaborate measures to
toll-gate access to copies of their work. And that includes any definition
of "publication" that is formulated in the service of protecting the
toll-gating itself -- as it is for the much larger corpus of non-give-away
literature, for which copyright law was formulated, and to which it
is applicable.

So let the tradesmen concern themselves with how to define "publication"
in order to protect their toll-revenues, but let the give-away researchers
define "publication" in terms of what it really means in their
peer-reviewed, publish/perish world -- the only world to which Gene's
recommendations about the self-archiving of unrefereed, unpublished
research was addressed.

Stevan Harnad

NOTE: A complete archive of the ongoing discussion of providing open
access to the peer-reviewed research 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 Mon Sep 02 2002 - 16:28:17 BST

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