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

[Stevan Harnad <harnad@ecs.soton.ac.uk>]

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it would have worked fine) in January 2003, since superseded by 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)
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/2556.html

     "The Immediate-Deposit/Optional Access (ID/OA) Mandate: Rationale
     and Model" (Mar 2006)
     http://openaccess.eprints.org/index.php?/archives/71-guid.html

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"
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/5195.html
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/5604.html
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/2556.html
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/0079.html

     "What Provosts Need to Mandate"
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/3241.html
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/5626.html
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/2550.html

     "Optimizing MIT's Open Access Policy"
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/5244.html
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/6475.html
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/4483.html

     "Cornell's Copyright Advice: Guide for the Perplexed Self-Archiver"
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/5664.html

     "How to Word Institutional Self-Archiving Policy"
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/4542.html
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/3812.html
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/2889.html
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/0732.html

     "US University OA Resolutions Omit Most Important Component"
     http://users.ecs.soton.ac.uk/harnad/Hypermail/Amsci/4516.html

Stevan Harnad