On Tue, 22 Feb 2000, Marvin Margoshes wrote: >sh> Could we hear some informed legal opinion about whether PRIOR >sh> self-archiving on the Web counts as prior publication in the precise >sh> sense that one affirms in a copyright agreement stating that "it has >sh> not previously been published"? > > I'm not a lawyer, but I have had a patent attorney explain to me what > "publish" means.
Patents (and novels and software and music) are PRECISELY the wrong model for this give-away literature. Patent lawyers are concerned to protect the inventor from theft of his product. The researcher WANTS his "product" "stolen." > It is "to make public", and the format doesn't matter, nor > does the number of copies. It can even be an oral disclosure to a small > group. A disclosure isn't a publication if it is done as a confidential > disclosure. Thus, submitting a manuscript to a journal and having it > reviewed is not publication because the editors and reviewers are supposed > to keep the document confidential. The same applies to grant applications. Is it not patently obvious that this sense of "publication" is irrelevant to what one signs at the point of copyright assignment? For if it were a lie and a violation of copyright to say, hand on heart, that "this work has not previously been published" when one has circulated prior drafts to other researchers for feedback, and presented it at seminars and conferences, then 95% of existing copyright transfer agreements are under violation and always have been! No, this is not what is meant by "prior publication," of course (for copyright purposes: press embargoes and "scooping" considerations are something else, but those neither legal nor copyright matters; they are merely arbitrary journal policy matters). http://www.sciencemag.org/cgi/eletters/285/5425/197#EL12 What copyright agreements mean by "prior publication" is prior publication by a publisher, in a journal, conference proceeding, or book, and for sale. Free self-distribution by the author as paper preprints or tech reports, or as oral presentations at seminars and conferences, are not and never have been considered "prior publication" -- nor could they be, or else scientific research and communication would have had to come to a virtual stand-still at the behest of publishers' copyright agreements! Online self-archiving of unrefereed preprints on the Web is untested in court, but I would argue (and will bet) that it falls under self-distribution of the author's research, just as it did on paper and orally, and not under "prior publication" in the sense used in copyright agreements. There is simply no justification -- none -- for treating it otherwise -- except of course as special pleading to protect journals' current S/L/P revenue streams and modera operandi, in direct conflict with what is clearly in the best interests of research and researchers in this new medium and the revolutionary possibilities it has opened up. > In the case of copyright in the U.S., the author does not lose the copyright > simply by publishing the article. (See http://www.loc.gov/copyright/ for > more authoritatve information.) He could still assign the copyright to a > journal. However, signing a copyright release with a statement about prior > publication that the author knows to be false is probably as illegal as > making any other false statement in a legal document. Perhaps it isn't a > violation of criminal law, but of civil law. If it was false in the case of paper and oral preprints, then this is all moot, as nothing is new. And if it was not false in the case of paper and oral preprints, then it is not false in the case of online preprints either. > And I say again - there is also the matter of ethics. Ethics is still > considered to be important among scientists. Quite a few have ruined their > careers by publishing "fudged" data. No ethics are at issue when what one is doing is legal, what one is saying is true, and one's reasons for doing it are benign. It is not the researcher's ethical responsibility to resolve in the publishers' favour the very real conflict between the interests of research/researchers and publishers that has been created by this new medium. Let both parties do what they can, within the bounds of what is legal and what is practicable, and let the cards fall where they may. And I of course reject completely the shrill sensationalism implicit in likening the honest distribution of one's research free to one and all with the fudging of data. -------------------------------------------------------------------- Stevan Harnad [email protected] Professor of Cognitive Science [email protected] Department of Electronics and phone: +44 23-80 592-582 Computer Science fax: +44 23-80 592-865 University of Southampton http://www.ecs.soton.ac.uk/~harnad/ Highfield, Southampton http://www.princeton.edu/~harnad/ SO17 1BJ UNITED KINGDOM NOTE: A complete archive of this ongoing discussion of providing free access to the refereed journal literature is available at the American Scientist September Forum (98 & 99 & 00): http://amsci-forum.amsci.org/archives/American-Scientist-Open-Access-Forum.html You may join the list at the site above. Discussion can be posted to: [email protected]
