Subject: Re: Archiving Journals in CogPrints From: Stevan Harnad <harnad@xxxxxxxxxxxxxxx> Date: Mon, 12 Aug 2002 00:11:37 +0100 (BST) |
On Sun, 11 Aug 2002, Manfredi M.A. La Manna wrote: > The current (and fluid) situation is slightly more complicated than Stevan > makes out. Even publishers who appear to take a liberal view on > pre/postprints do impose rather tight restrictions when you read the small > print. Take the following example: > > Publisher X: First of all, why "Publisher X"? Is this a real example, or a hypothetical one? If a real example, why conceal the publisher's name? Is there any reason why any publisher's copyright policy should not be public? If this is a hypothetical example, why are we bothering with it, instead of considering real examples? I shall continue as if this were a real example. I note also that Manfredi is conflating copyright matters and embargo/Ingelfinger matters willy-nilly in his postings. I will try to tease them apart as we go along: > "authors who assign their copyright to us retain unlimited > free reproduction rights for their own work. Authors do not give up their > rights to republish or reproduce their work for course notes, in another > journal or as a book chapter, or electronically including their own or > institutional Web Site, subject to acknowledging first publication details." The "first publication details" referred to here are the details of the publication in the journal itself! And this is about the self-archiving of the refereed postprint, hence a copyright matter, not about the self-archiving of the unrefereed preprints, which is merely a journal-policy (Ingelfinger/Embargo) matter. I would be quite happy if all 20,000 peer reviewed journals adopted the above copyright agreement for the self-archiving of refereed, published postprints... > This seems quite self-archiving friendly. However, authors have also to > sign an undertaking that > > "we warrant that the Work has not been published before". Of course, and it is most reasonable that a journal should request this. Why should it waste its referees' time and its journal's space on papers that have already been published in other journals (or books, or conference proceedings)? > In other words, to quote from the explanation given by the editor of a > journal published by X: > > "The freedom to use your paper in whatever form kicks in *after* the > publication date of the paper in the journal, not before. > Pre-publication on a website would infringe this because a guarantee has > been signed that "the Work has not been published before". With all due respect to the author of this anonymous explanation of this anonymous journal's copyright policy, this is nonsense! As I have pointed out many, many times before, the legal definition of "publication" is already fulfilled by committing a text to paper once and showing it to someone. It is fulfilled a fortiori by circulating paper preprints to colleagues for comments. Therefore this legal definition of "publication" cannot possibly be the one on which copyright transfer is based, otherwise the manuscript on which a paper is submitted to be considered for publication would already constitute a prior publication, and hence make ALL submissions ineligible! Hence logic dictates that this abstract sense of prior "publication" cannot be the one meant in the passage in the copyright transfer agreement attesting to the papers not having been previously published. Having followed the logic so far, it should not require much effort to see that it cannot, by the same token, apply to the prior circulation of eprints either, whether by email or via the web (especially in these days of email and web submissions!). I would suggest that this sort of foggy thinking is not worth our attention, even if it comes from an anonymous editor "explaining" an anonymous publisher's copyright policy. If you want legal advice about the meaning of contracts, don't ask an editor! Here is what does make sense, and what is meant by such copyright transfer agreements: "We will not re-publish your paper in our peer-reviewed journal if your paper has already been published before (in a peer-reviewed journal, or a book, or conference proceedings). Any prior informal circulation of the unrefereed preprint does not count as 'publication'." End of story insofar as copyright transfer ocntracts and preprints are concerned. The Ingelfinger Rule (see http://www.nejm.org/general/text/editorial.htm ) goes further. It says: "We will not even REFEREE for potential publication a paper that has been made public (in the form of an online preprints or even a press release) prior to its ACCEPTANCE for publication by this journal." Preprint self-archiving would indeed be a "violation" of the Ingelfinger Rule. My advice to all authors is to go ahead and violate the Ingelfinger Rule! It is both indefensible and unenforceable, it is not even a legal matter, and it is on the way out anyway: http://www.eprints.org/self-faq/#publishers-do Harnad, S. (2000) Ingelfinger Over-Ruled: The Role of the Web in the Future of Refereed Medical Journal Publishing. Lancet Perspectives 256 (December Supplement): s16. http://cogprints.soton.ac.uk/documents/disk0/00/00/17/03/index.html Harnad, S. (2000) E-Knowledge: Freeing the Refereed Journal Corpus Online. Computer Law & Security Report 16(2) 78-87. http://cogprints.soton.ac.uk/documents/disk0/00/00/17/01/index.html > Notice that if a form giving the above guarantee is not signed by the > author, the paper is not published. Full stop. So much for > "the Ingelfinger Rule [being] virtually unenforceable". Once the paper whose preprint has already been self-archived has been refereed and accepted for publication, the Ingelfinger Rule has already been violated! Before any copyright transfer statement has been signed! Manfredi is conflating the Ingelfinger Rule (not a copyright matter) with the above-discussed misconstrual of what constutes "prior publication" for purposes of copyright transfer (a copyright matter). Sign the copyright transfer form (if you must), and don't worry about the previously self-archived preprint as constituting "prior publication." > Of course, one could break one's word and still post the paper. Manfredi is again conflating preprint and postprint, Inglefinger and copyright, past and future. One has ALREADY posted the preprint, before even submitting the paper to the journal. The only thing one can "break" in now signing the copyright transfer form that attests to its not having been previously published is some tortured semiotic attempt to construe preprint self-archiving as prior publication! What the author may do with the postprint AFTER signing the copyright transfer agreement (if he has foolishly, or forcibly, signed an agreement that transfers all rights to the publisher) is a bit more complicated, but only a bit. If he has transfered all rights then he may only self-archive the corrigenda (and insert the URL of the already archived preprint, indicating that these changes need to be made to make the unrefereed preprint conform to the refereed postprint: http://www.ecs.soton.ac.uk/~harnad/Tp/resolution.htm#Harnad/Oppenheim ). But in the (anonymous) case under discussion here, the author need not bother resorting to the preprint-plus-corrigenda strategy, for the agreement described above explicitly allows the self-archiving of the postprint! > However, > one would place oneself in the uncomfortable position of being in breach of > contract (nothing to do with copyright, as Stevan correctly points out). In breach of contract only on an incoherent construal of what constitutes "prior publication." I wouldn't worry about it. The limitless resources of hermeneutics are always there to render any contract hypothetically breached if one applies sufficiently anomalous construals of its terms. > I am no lawyer, but in what way is being in breach of contract "not a > legal matter" (as claimed in > http://www.eprints.org/self-faq/#publisher-forbids)? I stand corrected. I should have said "it is not a copyright matter." It is a legal matter in precisely the same sense that any abitrary misconstrual of the terms of a contract would be a legal matter if that construal can be sustained. Here, this sense of "prior publication" cannot be sustained. If the contract instead said: "I swear that I have not previously self-archived the unrefereed preprint of this paper on the Web" then it would be a substantive violation of the contract if one had. But I know of no copyright transfer agreement that states this arbitrary stipulation in this unequivocal way -- and I hope authors would have the good sense to strike it out of any contract before they signed it if it did. > Perhaps the fact that the greatest majority of researchers do NOT > self-archive may have something to do with this? I should hope not! Researchers have been sluggish about self-archiving for many fuzzy reasons, most of them at last showing signs of clearing up. But I rather doubt that this particular piece of fuzzy reasoning accounts for a significant proportion of the variance... > If only things were black and white They're getting there, they're getting there. Un po piu di pazienzia! http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/2212.html Stevan
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