Re: Do PrePrints and PostPrints Need a Copyright Licence?

From: Stevan Harnad <>
Date: Mon, 17 Oct 2005 12:06:33 +0100

On Mon, 17 Oct 2005, Andrew A. Adams wrote:
> Stevan Harnad wrote:
> > But for the unpublished, unrefereed, not-yet-copyright-protected preprints, it is
> > a good idea to adopt one of the Copyright Commons Licenses to protect it until
> > the final postprint is ready, accepted by the journal, and thenceforward
> > covered by the journal's copyright agreement.
> >
> > It is somewhat misleading, though, to say that "eprints," generically, need a
> > separate license: The preprints do, the postprints do not.
> The phrase here "not-yet-copyright-protected pre-prints" here is rather
> misleading. Under the Berne convention, to which all the countries with major
> research univerisites are signatory, to the best of my knowledge, material is
> protected by copyright as soon as it is produced.

Yes, but best to asssert it explicitly, and specify rights.

> The differentce between a
> preprint and a post-print is that a pre-print is wholly copyright to either
> the author, their employer or jointly to the employer/researcher. Journals do
> not have a privileged position in law as to copyright. As a practical matter
> they have "deeper pockets" generally and so could afford to be more
> aggressive in asserting their rights, but the righs do not differ.

I didn't say they did. I said that the postprint is almost always bound by an
explicit copyright agreement with the publisher, hence it makes no sense to
post another, different copyright license.

> Under
> copyright law, putting something ont he web does not grant any rights except
> the implied right to make a transitory copy for reading purposes, plus of
> course the fair dealing/fair use rights oen always has with regard to
> material, such as making a copy for private research or for teaching purposes.

If you are speaking from the user's point of view, that is just fine:
An open-access paper, self-archived in the author's institutional
repository, is permanently accessible, free for all, on the web. That
means the user can read it on-screen, download it, print it off,
store it on his computer, do computations on it, use its content, cite it,
quote it (specifying author and source, within the limits of fair use),
and provide its URL for anyone who wishes to do the same. All that
comes with the web territory and it is absurd to imply that there is
any further stipulation required to make that formal.

What does *not* come with the territory is the right to (1) claim to have
authored the text, (2) to reproduce it in altered form, (3) to re-publish it,
or (4) re-distribute it in hard copy.

(1)-(4) are *not* part of Open Access (OA), which pertains specifically
only to online access and use. Hence it is a mistake to cross the wires
between libraries' 3rd-party fair-use and course-pack issues, on the
one hand, and OA's author first-party give-aways on the other. Just
distribute the URL. The rest comes with the territory.

> Now, as a practical matter, journals may be unhappy with submission of
> material which has already been made available freely on the web,

Some may be. That's called the "Ingelfinger Rule," but it is not a copyright or
legal matter, merely a submission policy."We will not consider for publication
any paper that has been posted on the web -- or any paper that has been written
by an author with a blue-eyed maternal uncle..."

Most journals have dropped the Ingelfinger Rule and 93% of them have already
given their blessing to author self-archiving.

> but use of
> a CC license is only in fact MORE likely to make this a problem for a
> publisher, since there is no revocation clause in CC licenses so by
> publishing something under one, the rights thus granted are perpetual for
> those people who get hold of it while it is initially available under that
> license, or who get it via an onward distribution by someone holding those
> rights. CC licenses "release" some of the rights ordinarily granted to the
> copyright holder _by_default_.

That is not a problem, as authors do not and need not intend to ever
remove the preprint from public view (and even if they do, it's too late,
once the cat's out of the bag). What they can and should do is clearly
tag the preprint as unrefereed, and point to the final, peer-reviewed
accepted, published draft, as soon as it is available.

But it is still a good idea to explicitly assert copyright on the
preprint, rather than just post it nakedly. (Nothing earth-shaking at
stake either way.)

Stevan Harnad
Received on Mon Oct 17 2005 - 12:44:17 BST

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