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

From: Stevan Harnad <>
Date: Thu, 5 Sep 2002 00:58:33 +0100

On Wed, 4 Sep 2002, Joseph Pietro Riolo wrote:

> On Mon, 2 Sep 2002, Stevan Harnad <> wrote:
> >
>sh> This is a red herring, conflating researchers' criteria for
>sh> what counts as a formal publication with trade criteria for
>sh> protecting toll-revenues.
> This is not a red herring. I provided the definition of publication
> as seen by the U.S. Copyright Law. As indicated by your post,
> you have a special meaning of publication that does not agree
> with the law. It is not totally clear from your post which
> definition the publishers use.

I said the US Copyright Law definition of publication was a red herring
with respect to Gene Garfield's point about what counts as publication
for researchers (whether they are wearing their author's, referee's,
editor's or reader's hats).

>sh> THIS is the sense of publication that Gene is talking about and this
>sh> should already have been obvious from the fact that he uses the word
>sh> "publication" in both senses in the very same sentence above, in
>sh> answering (in the negative) his own question, namely, "Is Acknowledged
>sh> Self-Archiving Prior Publication?" And he is addressing this question
>sh> to fellow-researchers -- authors, referees, and editors -- not to drafters
>sh> of copyright law.
> I must wonder why you submit your post to CNI-COPYRIGHT. What are
> you trying to accomplish?

It is not just a little important but extremely important that those
who are involved in the legalities of copyright and copyright law in
the digital era should come to clearly understand that refereed-journal
article authors do not seek the kind of copyright protection that most
authors seek. One of the biggest sources of misunderstanding and confusion
about copyright among academics today revolves around this very point.

I posted this to the copyright list precisely to highlight this point.

>sh> WHY was this question not addressing copyright law or copyright
>sh> lawyers? Because, if you will look carefully at every one of the criteria
>sh> invoked in the legal "definition" of publication above -- "sale, transfer
>sh> of ownership, rental, lease, lending" -- every single one of them is
>sh> utterly irrelevant to the special, anomalous literature which is the only
>sh> one of which we are speaking here. For refereed research publications are
>sh> all author give-aways: Their authors do not seek to sell, rent, lease,
>sh> lend or otherwise transfer their ownership. ...
> The U.S. Copyright Law does not require sale to be at least $0.01 (one
> cent). If an author wants to give the copies of his article to public
> at no cost, the law considers it as a sale at $0.00. It is like
> putting a stack of 100 copies of his article on one corner of street
> so that anyone walking by can take one for free.

This is precisely why the copyright law's definition of "publication"
has nothing to do with the researcher's definition of publication, and
it was to the researcher's definition of publication that Gene was
referring; that is the ONLY sense of publication that has any relevance
whatsoever to what Gene was saying.

It follows that those 3rd parties [other than the author and the user]
who would invoke the US Copyright Law definition of "publication" in order
to justify "prior publication embargos" such as the Ingelfinger Rule need
to be clearly shown to be doing the self-serving conflation that this
amounts to.

(I am obviously not referring here to the commentator to whom I am
presently responding, who has -- I think incorrectly -- concluded that
putting one's work in the public domain is the only way to protect against
this very conflation. Putting one's work in the public domain cedes far
too much control -- over both the authorship and integrity of the text --
and it makes it impossible for refereed-research authors even to license
their publishers to try to recover their investment by trying to sell
the text. Hence public domain is not the solution for these authors.)

> Likewise, if the author gives a copy of his article to each library
> for lending to public at no cost, the law considers it as a publication
> even though he does not earn any royalty.

But for the researcher, his institution, his funders, and his readers
and users, the only thing that is relevant is whether what the author
gives to the library is indeed a publication, in their sense, or merely
an unpublished preprint.

>sh> i.e., the fact that it is they who wrote them and not someone else --
>sh> is of course retained by these special authors, as by all authors. But
>sh> the texts themselves are all given away; not a penny of royalties or
>sh> fees or other form of income from their sale/rental/lease/lending is
>sh> received or sought by their authors.
> The law does not recognize "moral ownership". You are making it up.

Call it whatever you like: It is what you are violating when you
plagiarize. (And I'm not sure the authors of public-domain works are
protected from it.)

Stevan Harnad
Received on Thu Sep 05 2002 - 00:58:33 BST

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