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Questions: RE: Vanishing Act -- continued


my reply, quite simply, is that I would expect the publisher to not
withdraw the article and pay the damages if it eventually loses the case.
My reason for this is that if the publisher acts otherwise, legal caution
will surely induce him to to withdraw articles which might not be found to
be in violation if the fullest possible vigorous defense were to be made.
Indeed, you demonstrate this my saying it is the common practice to
withdraw when the claim has "some" basis or "reasonable potential of
success."  That is a standard I think unacceptable for academic material.

Thu, 30 Jan 2003 stephen.barr@sagepub.co.uk wrote:

> This discussion so far has not as far as I am aware had a comment from
> Elsevier; it would be interesting to hear their view.  As a publisher, I
> have a different angle on with some of the points made, particularly on
> withdrawal of content for legal reasons - where the content is (or is
> reasonably claimed to be) libellous, a violation of copyright, or in some
> other way an infringement of the law.  It does not seem reasonable to
> attack Elsevier or other publishers for withdrawing content in these
> circumstances.  There are well established legal conventions to the effect
> that continued supply, after notification of the legal violation,
> aggravates the original offence and can make the publisher and author
> vulnerable to much greater damages.  Traditionally in journal publishing
> this had little effect, as the copies of that issue had already been
> despatched.  In book publishing, on the other hand, it is common where a
> book is subject to an accusation of legal breach and where that accusation
> has some basis or reasonable potential of success, for the book to be
> withdrawn from continued sale, at least until the issue has been resolved.
> Electronic publication means that journal publishing now involves the
> issue of continued supply which traditionally arose for books.  The
> publisher cannot wait until after a court has determined that the book or
> article in question was in fact libellous or in breach of copyright - the
> publisher has to act on notification of the offence.
> The community should by all means develop codes of practice which
> represent guidance to authors, publishers, societies and journal editors
> on how to handle issues of retraction, correction or withdrawal of
> content.  I suggest though some realism on authors' and publishers' legal
> liabilities and responsibilities.
> Stephen Barr
> Sage Publications London
> stephen.barr@sagepub.co.uk
> The opinions expressed are personal