Copyright: Form, Content, and Prepublication Incarnations
harnad at cogprints.soton.ac.uk
Thu Nov 15 11:50:22 EST 2001
On Thu, 15 Nov 2001, Albert Henderson wrote:
> > 6. How to get around restrictive copyright legally
> > http://www.cogsci.soton.ac.uk/~harnad/Tp/resolution.htm#Harnad/Oppenheim
> the following passage [is] misleading:
> > 6.5. If 6.3 is unsuccessful, archive the"corrigenda"
> > Your pre-refereeing preprint has already been self-archived
> > since prior to submission, and is not covered by the copyright
> > agreement, which pertains to the revised final ("value-added")
> > draft. Hence all you need to do is to self-archive a further file,
> > linked to the archived preprint, which simply lists the
> > corrections that the reader may wish to make in order to conform
> > the preprint to the refereed, accepted version.
> If this were true, the standard language of copyright agreements would
> refer to all prior versions of the work.
> If the work covered by the copyright agreement is substantially the same,
> using the same language, title, references, etc., then the earlier version
> is also covered. The exception would be passages deleted from the earlier
Albert Henderson unfortunately continues to misunderstand the point
here, and I think I know why. He continues to think in completely
unreconstructed Gutenberg-era terms, as if the Internet and the
digital revolution had never happened, and we were simply speaking
about straightforward cases of present and past print-on-paper
The case he always has in mind is an author, asked to transfer
copyright, while another publisher, a prior one, continues to
print and publish and sell the text in question.
In such a case, the copyright holder can go after the other publisher,
to get him to stop printing or selling the text.
But that is not at all the case here! There is no other publisher.
The AUTHOR HIMSELF has publicly archived HIS OWN TEXT on-line
BEFORE THERE WAS ANY COPYRIGHT TRANSFER AGREEMENT.
Having done that, there is no way to stop the cyberjuggernaut: It
is like having aired a text on a public-address system and trying
to recall the airwaves.
Now this PostGutenberg fact is definitely bad news for authors (and
publishers) of NON-give-away on-line texts too (e.g. books and for-fee
magazine articles), but, because both parties share the same interest,
namely, to prevent theft-of-text, the case is less likely to arise
(why would a non-give-away author public archive his text online?). And,
if it is done by a third party, they both have an interest in bringing
legal action against him. (This will not put the public genie back in
the bottle either, but it is a deterrent to third parties.)
But it is NOT bad news for authors of give-away on-line texts (though
perhaps it is still bad news for their publishers), because those
authors do not share any interest in preventing theft-of-text: They
welcome and benefit from it (in research uptake and impact).
But, most important of all, THERE IS NO 3RD PARTY TO GO AFTER!
The public self-archiving is past history. It pre-dates the signing
of any copyright agreement. And the genie is already out of the
It is this PostGutenberg reality that Albert Henderson is
unfortunately finding it impossible to assimilate. He just goes
back to replying every time as if this were still the Gutenberg era,
and there were still something anyone could do about it.
NOTE: A complete archive of the ongoing discussion of providing free
access to the refereed journal literature online is available at the
American Scientist September Forum (98 & 99 & 00 & 01):
You may join the list at the amsci site.
Discussion can be posted to:
september98-forum at amsci-forum.amsci.org
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