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

[sgt3@psu.edu]

>sp> It seems that copyright ownership could be an important 
>sp> obstacle to archiving postprints.
>
>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.

So what I am suggesting is that, however ingenious Stevan's 
"preprint + corrigenda" may appear, its legal status remains at 
least questionable.

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.

Sanford G. Thatcher
Director, Penn State Press
University Park, PA 16802-1003
http://www.psupress.org