On Fri, 22 Nov 2002, Laurence Bebbington wrote:

>sh> (1) Researchers are not self-PUBLISHING, they are self-ARCHIVING their
>sh> research, both before (preprints) and after publishing it in
>sh> peer-reviewed journals (postprints).
>sh> http://www.ecs.soton.ac.uk/~harnad/Tp/resolution.htm#1.4
>
> You may consider that the posting of a pre-print is self-archiving
> rather than self-publishing and you are perfectly entitled to argue for
> your distinction. I appreciate your views on copyright etc. but it might
> be mentioned that s.175 of the Copyright Designs and Patents Act 1988
> states quite clearly that:

> " ... "publication", in relation to a work --
>
> (a) means the issue of copies to the public, and
> (b) includes, in the case of a literary, dramatic, musical or artistic
> work, making it available to the public by means of an electronic
> retrieval system; and related expressions shall be construed accordingly."
>
> Quite clearly, whatever distinctions you wish to make, it would seem
> that the mounting of a literary work on a pre-print server constitutes
> "publishing" in law, since a literary work is being made available to the
> public by means of an electronic retrieval system. It seems to me that
> this is quite an important point. In a purely legal sense the work is
> "published" and certain consequences inevitably flow from that fact.
>
> Laurence W. Bebbington, Law Librarian, The University of Nottingham

We have been around this many times before, most recently on this
thread:

    "Garfield: 'Acknowledged Self-Archiving is Not Prior Publication'"
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/2239.html

but since this is a crusade, I will shoulder the cross of summarizing,
yet again, the salient points and distinctions:

(1) Please distinguish the (interesting) question of (p) what counts
as a "publication" in law from the (interesting, but rather different)
question of (q) what counts as a publication for your promotion/tenure
committee or for the RAE (which, generously, has formally proclaimed
from the outset that publication in a peer-reviewed electronic journal
DOES count -- but self-publishing, be it ever so compliant with s.175
of the Copyright Designs and Patents Act, does not).

(2) Both questions raise issues, but not the same issues! Let's call
one set of issues, those pertaining to "legality" (copyright, royalties,
priority, plagiarism, etc.), the "p" issues (giving them primacy for the
"p-word") and the other set of issues, those pertaining to "quality"
(peer-review, vanity press, etc.), the "q" issues.

(3) One can ask "What counts as a publication" in either the "p" or "q"
sense.

(4) The CHE article in question -- about publishers trying to persuade
university libraries not to encourage their authors to "self-publish"
-- was in fact not (this time) a legalistic appeal, invoking publication
in the Patent-Act sense "p," and threatening to prosecute for copyright
violation. This time it was mostly an appeal on the basis of "q": that
authors are better off sticking to the traditional peer-reviewed
publication offered by peer-reviewed journals, rather than
"self-publishing" unrefereed work on their own.

(5) And the point of my reply was that they are not "self-publishing"
unrefereed work on their own. Their unrefereed preprints may count
as publications-p for lawyers, but they don't count as publications-q
for their RAE assessors. Hence it is not the self-archiving of their
unrefereed preprints that is of primary interest, but their self-archiving
of their refereed, published postprints (or, if they feel restrained
by copyright Angst, their self-archiving of their unrefereed preprints
plus the file listing the corrigenda that would turn the preprint into
the postprint). http://www.eprints.org/self-faq/#publisher-forbids

(5) It is about the postprint -- the q-print, if you prefer -- that I
reminded the author of the CHE article that we are discussing
self-archiving here, not self-publishing. (But if you prefer, you may
read that as re-p-publishing of an already p-published and q-published
paper. In any case, immaterial to the point at issue, which was simply
that the papers in question have already been published -- by the
journal publisher!)

(6) You are no doubt interested in the p-status of the self-archived
preprint: Fine. It is p-published but not q-published.

(7) The RAE only cares about q-publication.

(8) The CHE article was appealing to authors' (and libraries) q-sense,
on this occasion, not their p-sense.

(9) Hence the vexed issue of what p-publication does or not count for
-- for anyone but a lawyer -- never even arose.

(10) Which is not to say it has not arisen before. Please see the
threads:

    "Chron. High. Ed. 18 September on Cal Tech & Copyright"
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/0103.html

    "Copyright: Form, Content, and Prepublication Incarnations"
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/1583.html

    "Copyright, Embargo, and the Ingelfinger Rule"
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/0496.html

    "Evolving Publisher Copyright Policies On Self-Archiving"
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/2350.html

    "Legal ways around copyright for one's own giveaway texts"
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/0541.html

    "PostGutenberg Copyrights and Wrongs for Give-Away Research"
    http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/1309.html

and passim.

Stevan harnad

NOTE: A complete archive of the ongoing discussion of providing open
access to the peer-reviewed research literature online is available at
the American Scientist September Forum (98 & 99 & 00 & 01 & 02):

    http://amsci-forum.amsci.org/archives/september98-forum.html
                            or
    http://www.cogsci.soton.ac.uk/~harnad/Hypermail/Amsci/index.html

Discussion can be posted to: [log in to unmask]

See also the Budapest Open Access Initiative:
    http://www.soros.org/openaccess

the Free Online Scholarship Movement:
    http://www.earlham.edu/~peters/fos/timeline.htm

the SPARC position paper on institutional repositories:
    http://www.unites.uqam.ca/src/sante.htm

the OAI site:
    http://www.openarchives.org

and the free OAI institutional archiving software site:
    http://www.eprints.org/