Re: Public Access to Science Act (Sabo Bill, H.R. 2613)

From: Stevan Harnad <>
Date: Fri, 5 Sep 2003 19:48:51 +0100

On Fri, 5 Sep 2003, Sally Morris wrote:

> Actually, I disagree with your statement that "... publishers are likely ...
> to try to contest it [authors not signing (c) transfer] if it risks becoming
> the majority case". It's my impression that the number of publishers who do
> not require copyright transfer is growing, as they realise that they can do
> just about everything they need to do to safeguard their business without
> it, given a suitably crafted agreement.

The kind of case I think you have in mind is the licensing of
author-copyrighted texts. But the scenario we are contemplating here is
for public-domain texts. The author cannot license those, as he has no
copyright to them himself! The publisher must take the risk of publishing
them unlicensed, knowing that a rival cut-rate publisher could legally also
do so, simultaneously and systematically (if they are openly accessible
online), thereby undercutting even the first publisher's first-sale
rights. The first publisher invests in the peer review, editing, etc.,
and the second publisher gets to sell the product (and at a lower price).

> Even those who do normally require
> copyright transfer accept that they can't always get it - not only in the
> case of Govt authors, but also with employees of certain types of corporate;
> this certainly doesn't stop them publishing such papers.

First, that is a small enough minority of papers right now to pose no
systematic overall risk. Second, with employee-texts, the author's
employer, at least, holds the copyright and can control who may sell it.
With public domain texts, no one does.

> What they can't
> do without copyright - as Marty Blume of APS has convincingly pointed out -
> is to act quite so rapidly or decisively to protect an author's interest in
> cases of plagiarism or other infringements.

As far as I understand it -- and I readily admit to only an
amateur understanding of copyright law! -- in the US there is no
intellectual-property or moral-rights law. The only way to protect
a text from plagiarism or corruption is through current US copyright
law. The copyright owner has the legal right to specify who may or may
not publish the text, online or on-paper. But public-domain texts do not
enjoy copyright protection. No one can say who may or may not publish
or re-publish them, online or on-paper, or in what form (text-integrity).

So publishers can go after any form of copyright violation -- whether it
be theft-of-text, theft-of-text-authorship (plagiarism) or text-corruption
(reproduction of altered text, with or without author-attribution)
-- only under the aegis of copyright protection. Without copyright
protection, there is no other basis for protection from plagiarism or
text-corruption than (1) honor (an unreliable policeman!)
plus (2) the heightened detectability of duplicate or altered texts
online (but that's just data: without copyright law, public
name-and-shame would be the author's only recourse).

Of course US copyright law *could* be revised to provide for protection of
the author's moral right in his intellectual property (i.e., protection
from theft-of-authorship) independent of protection from theft-of-text,
which open-access authors do not seek. But my point is that there is no
necessity to revise copyright law in order to provide open access! Nor
is there any necessity to renounce the protection of existing copyright
law, by mandating that the texts be put in the public domain, with its
needless risks, in order to provide open access.

All that is needed is mandated open access! And the simplest and most
direct way for journals to comply with that is simply to allow their
authors to self-archive their articles in their own institution's
open-access archive, as 55% of them already formally allow them to do
(and many others already agree to do, if asked on a per-article basis).

Hence there is no need to resort to the untested risks -- to both authors
and publishers -- of putting all these texts in the public domain. Open access
can be had without requiring any such radical measures (and without
having to first overcome the inevitable resistance and conflict such
proposals will elicit, with both publishers and authors). A much more
moderate measure -- mandating open access itself, easily complied with
by publishers by simply allowing self-archiving -- is sufficient.

The Sabo Bill can confer all the dramatic benefits that it promises by
mandating something far more moderate than what it currently proposes --
with a greater likelihood of success, both for bill passage unopposed,
and for translating the intent into action on the part of authors and
publishers. This far less radical Bill would also give the publishing
community a much more relaxed and natural timetable to adapt to the
consequences of open access.

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 & 02 & 03):

Discussion can be posted to:
Received on Fri Sep 05 2003 - 19:48:51 BST

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