Re: Copyright retention is not a prerequisite for self-archiving

From: Stevan Harnad <>
Date: Wed, 18 Jul 2007 13:54:23 -0400

I'm not quite sure why Sandy Thatcher is quoting (below), in July
2007, a recommendation that was made (and not followed -- though it
would have worked fine) in January 2003, since superseded by the
Immediate-Deposit/Optional-Access (ID/OA) mandate recommendation
that is the one currently under discussion:

    "Draft Policy for Self-Archiving University Research Output"
    (Jan 2003)

    "The Immediate-Deposit/Optional Access (ID/OA) Mandate: Rationale
    and Model" (Mar 2006)

On Mon, 16 Jul 2007 Sandy Thatcher edu wrote:

>>> sp: It seems that copyright ownership could be an important
>>> obstacle to archiving postprints.
>> sh:
>> It is only an obstacle if the author signs a copyright transfer
>> agreement that gives up the right to self-archive the postprint.
>> Our advice to authors is always to self-archive the preprint
>> (which precedes submission, refereeing, revision, postprint, and
>> copyright agreement) and if/when it is revised and accepted as
>> the postprint, to change the wording of the copyright agreement
>> to allow self-archiving of the postprint too. If/when the
>> publisher insists, sign the restrictive agreement and then
>> archive only the corrigenda that list the substantive changes
>> that need to be made to the preprint to turn make it equivalent
>> to the postprint.
>> In most cases, publishers will agree to the self-archiving of
>> the postprint if asked. For the shrinking number of cases where
>> they do not, the preprint+corrigenda will do for now.
> What Stevan so confidently asserts as simple fact has been shown
> in a previous thread ("Fair use/fair dealing-a fantasy?") to be
> hardly so clear cut. It is not obvious, under U.S. law at least,
> that signing a contract with a publisher for a postprint allows
> the author to do anything he or she wants with the preprint,
> whether or not the contract contains any explicit language to
> that effect, and the courts have divided on the question of
> whether contract law trumps copyright law and thus leaves an
> opening for an author to post a preprint under the theory that
> the author still has a "fair use" argument to do so.

I am lost! Is Sandy doubting (1) that most publishers will agree to
the self-archiving of the postprint if asked? or doubting (2) that,
if they don't agree, self-archiving the preprint before submission,
and the corrigenda after, will not do (for research and researchers)
almost as well? Or doubting (3) that ID/OA plus the "Fair Use" Button
can do the trick (for research and researchers) even better than (2)?

> So what I am suggesting is that, however ingenious Stevan's
> "preprint + corrigenda" may appear, its legal status remains at
> least questionable.

In 1991, physicists (the most sensible of all), simply went ahead and
self archived, willy-nilly, their preprints and postprints, without
troubling themselves about any of these hypothetical and pseudo-legal
questions. Computer scientists were doing it even earlier, again with the
commendable rationale: Don't bother to ask, don't bother to tell.

The rest of the disciplines (or, rather, 85% of the rest of the
disciplines, for about 15% self-archived too) have been in the thrall of
Zeno's Paralysis during all this time, and the preprints plus corrigenda
strategy (which would have sufficed, just fine) did not succeed in curing
them: The ID/OA mandate will. And the Fair-Use Button will take care
of the immediate needs of research and researcher needs until good sense
prevails and the optimal and inevitable is at long last upon us.

> That is a separate question, of course, from the practical
> question of whether any publisher would actually challenge the
> practice that Stevan favors, and as he notes, many publishers
> have explicitly agreed to the posting of preprints.
> Still, it is important to distinguish the legal from the
> practical question, and those arguing for addenda to contracts
> for authors to retain certain rights are not to be dismissed as
> providing totally irrelevant advice, as Stevan suggests they are.

The advice is good if it is given *in addition* to actually adopting
a Green OA self-archiving mandate (or at least the ID/OA compromise
mandate); but it is *exceedingly* bad advice if it is given *instead
of* adopting a Green OA self-archiving mandate (or at least the ID/OA
compromise mandate).

    "Copyright retention is not a prerequisite for self-archiving"

    "What Provosts Need to Mandate"

    "Optimizing MIT's Open Access Policy"

    "Cornell's Copyright Advice: Guide for the Perplexed Self-Archiver"

    "How to Word Institutional Self-Archiving Policy"

    "US University OA Resolutions Omit Most Important Component"

Stevan Harnad

If you have adopted or plan to adopt a policy of providing Open Access
to your own research article output, please describe your policy at:

    BOAI-1 ("Green"): Publish your article in a suitable toll-access journal
    BOAI-2 ("Gold"): Publish your article in an open-access journal if/when
    a suitable one exists.
    in BOTH cases self-archive a supplementary version of your article
    in your own institutional repository.
Received on Thu Jul 19 2007 - 21:22:01 BST

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