What Provosts Need to Mandate

From: Stevan Harnad <harnad_at_ecs.soton.ac.uk>
Date: Thu, 4 Dec 2003 22:19:19 +0000

>sh> better still, do as the far more sensible physicists did:
>sh> self-archive, and decide whether or not to withdraw
>sh> only if and when someone ever asks!

On Thu, 4 Dec 2003, Leslie Chan wrote:

> this is not something provosts and library directors would support

Provosts need merely mandate open-access provision. Nature will
take care of the rest.


Stevan Harnad

on 12/4/03 7:17 AM, Bob Parks at bparks_at_wueconc.wustl.edu wrote:

> Stevan Harnad writes:
>> If they want to ask the rest, fine; but better still, do as the far
>> more sensible physicists did: self-archive, and decide whether or not to
>> withdraw only if and when someone ever asks!
> EXACTLY. Stevan you need to emphasize this point more. Although
> I am certainly not a copyright lawyer, my belief is that :
> Author posts the paper.
> Publisher does not complain - GREAT - we are on our way.
> Publisher complains - NOTE that in order to complain, the
> publisher really needs to determine whether the author
> has asked for permission. But the publisher can play the
> game and just ask for removal.
> Author removes but makes a public comment about it. My guess,
> after a few complaints, publisher alters course and allows
> posting.
> Author decides not to remove. Worst case - publisher sues for
> copyright violation. Publisher must show that the paper is
> in violation and that the violation caused economic harm.
> Certainly lawyers are good at making such arguments but making
> the economic harm case will be difficult.
> Hopefully we could get a defense fund or free labor from law schools
> to help the Author who was sued.
> My bet is that the publishers have much better things to do than to
> attempt shouting COPYRIGHT at authors (who supply the articles to
> the publishers).
> But post the papers, wait until somebody complains, request documentation
> for the complaint (that is make it costly for the publisher to go forward),
> and IF in the end the author wants to avoid suit, then retract the paper but
> make a public statement about the retraction.
> Bob
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From: Stevan Harnad <harnad_at_ecs.soton.ac.uk>
Subject: Re: Copyright: Form, Content, and Prepublication Incarnations

On Thu, 4 Dec 2003, [identity deleted] wrote:

> >On Wed, 3 Dec 2003, Carole Brault wrote:
> > >
> > > I still have to verify : did the professor keep the "pre-print" of these
> > > articles ? I would say NO.
> On Wed, 3 Dec 2003, Stevan Harnad wrote
> >
> >No you don't have to verify it. The author just has to scan in his
> >old texts and then self-archive them. But do recommend self-archiving
> >present and future preprints, as not all publishers are as progressive
> >yet in this regard as Elsevier is.
> Am I missing something? Carole Brault's message seems to be saying that
> the professor no longer had print or digital versions of the preprints. In
> your reply, are you suggesting that she scans copies of the published
> version and self-archives them?

You are not missing anything: I will requote below the relevant passages
of http://authors.elsevier.com/ about which I wrote that "Between II and
III the author has plenty of leeway to scan in and digitize his legacy
texts... and then self-archive them on his institutional server. This
is neither publishing nor commercial":

     "As an [Elsevier] author, you retain [the following]
     rights... without the need to obtain specific permission from

     [II] "The right to publish a different or extended version of the paper
     so long as it is sufficiently new to be considered a new work.

    [III] "The right to re-use parts of the paper in other works, provided that
    the new work is not to be published commercially."

It is of no interest or legal import whatsoever how the author gets all
or part of his own paper in digital form -- whether by retrieving it
from an old file in his word-processor, or by scanning and OCR'ing it.

[Note that not all publishers are as liberal as Elsevier about the
self-archiving of legacy texts. That's why I added: "But do recommend
self-archiving present and future preprints, as not all publishers are
as progressive yet in this regard as Elsevier is."
http://www.eprints.org/self-faq/#copyright1 ]

> I read the passage on self-archiving on the Elsevier site (see below) and
> my understanding of what they are saying is that it is OK to self-archive
> the preprint version but NOT the published version. Wouldn't scanning his
> old texts constitute the articles "as published"?
> "Elsevier does not require that authors remove from publicly
> accessible servers versions of their paper that differ from
> the version as published by Elsevier. Posting of the article as
> published on a public server can only be done with Elsevier's
> specific written permission."

I would say that the Elsevier wording contains some ambiguity, but the
ambiguity is entirely in the author's favor. I repeat: Go ahead and
self-archive and stop worrying about unscruing the inscrutable!

> Also, when Elsevier say they do not require removal of preprints that
> DIFFER from the published version. Could this not be interpreted as saying
> that the author SHOULD remove the preprint if the journal publishes the
> article without changes ?

No. This can and should be interpreted as the fact that where there has
been no change to a text since it was preprint, there has been no change
in the text since it was a preprint (sic):

    "As an [Elsevier] author, you retain [the following] rights... without
    the need to obtain specific permission from Elsevier:

    [I] "The right to retain a preprint version of the article on a
    public electronic server such as the World Wide Web."

Elsewhere it is added:

        "A preprint of an article doesn't count as prior publication.
        Authors don't have to remove electronic preprints from publicly
        accessible servers"

[I have to admit that I do feel rather foolish going over this wording
with a fine toothcomb as if it were Holy Writ! It would be a good idea
if everyone else also realized just how foolish it was too, so we could
all move on to doing something more useful, like self-archiving!]

I might add in passing as to the following passage:

        "We ask authors not to update articles on public servers to match
        the articles we publish"

If I had written this rather impressionistic passage, I certainly would
not want to stake anything on invoking and applying it in court...

> As Eprint Archive Project Officer, I must advise our academics on the
> copyright issues relating to self-archiving. I need to be really clear
> about exactly what the publishers will and will not allow (without writing
> to them if possible - as I agree that this can be counter-productive)

With passages like the above, I strongly recommend that you use common
sense and resist any temptation to adopt a scriptural hermeneutic stance.
Obviously not even the people who wrote these passages gave them that
much thought!

> Our eprint archive is new so I want to get my facts straight at the outset.

Here are the facts: Physicists (and many others) have been sensibly
self-archiving their own preprints and postprints for over 12 years now
without once having given it a second thought (and with only 4 removals
out of a quarter million papers, for copyright reasons). Advise your
authors to do likewise. Leave the toothcombing to any journal minded
to request that a paper be removed, and cross that bridge when you come
to it, on a case by case basis. (Let's take up the topic again when you
reach 62,500 papers self-archived!)

> We will be advising our academics to assign copyright to the publisher but
> make it clear that they are retaining the right to self-archive a copy of
> the postprint version. However, it is likely that we will get some
> requests about self-archiving previously published articles.

First, advise your authors not to bother asking the 55% that already
support self-archiving:

If they want to ask the rest, fine; but better still, do as the far
more sensible physicists did: self-archive, and decide whether or not to
withdraw only if and when someone ever asks!

> By the way, the University recently endorsed an "eprint archive policy"
> so it will be interesting to see what effect this will have on our ability
> to populate the archive.

I don't know what an "eprint archive policy" is. If it is a policy of creating
an eprint archive and inviting your authors to self-archive, that is
definitely not enough. Try this instead:

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):
    Post discussion to: american-scientist-open-access-forum_at_amsci.org

Dual Open-Access-Provision Policy:
    BOAI-2 ("gold"): Publish your article in a suitable open-access
            journal whenever one exists.
    BOAI-1 ("green"): Otherwise, publish your article in a suitable
            toll-access journal and also self-archive it.
Received on Thu Dec 04 2003 - 22:19:19 GMT

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