68th IFLA Council and General Conference August 18-24, 2002

The publication/copyright distinction and its strategic implications for the successful implementation of Archives

Jean-Claude Guédon Université de Montréal

I Scholarly vs copyrighting.

The recent development of various forms of open-access archives has led to a series of questions which can roughly be classified in two categories: 1. Where do open access archives fit within the publication/copyright distinction? 2. What are the strategic implications for the successful implementation of these open access archives? 3. The first question essentially revolves around the question of peer-review and it amounts to establishing a clear distinction between the quality control and certification phase, on the one hand, and the printing/diffusion issues on the other hand.

After long discussions, clarifications have gradually emerged, helped in particular by a number of important statements drafted by Stevan Harnad and others. It is generally agreed that: 1.“An is the digital text of a peer-reviewed research article. Before refereeing and publication, the draft is called a "." The refereed, published final draft is called a "."1 2.Stevan Harnad's attitude is that the specificity of “scientific (or, more generally, scholarly) publishing” (SP) as such and distinguished from other forms of publishing rests on the fact that research papers are peer-reviewed within the context of existing, well identified, well tested institutions called scientific journals. This distinction is rigorous as it is used to define “scientific publishing” not as an activity, not as ab event, but as a real concept. To use his own word: “...for scholarly and scientific purposes, only meeting the quality standards of , hence acceptance for publication by a peer-reviewed journal, counts as publication. Self-archiving should on no account be confused with self-publication (vanity press). (Self-archiving pre-refereeing , however, is an excellent way of establishing priority and and asserting copyright.)”2. 3.Stevan Harnad also encourages us to archive “All significant stages of one's work, from the pre-refereeing preprint to the peer-reviewed, published postprint, to postpublication updates...” but he also advises us to remain conscious of the fact that all these forms of archiving do not all amount to SP. SP must be refereed within the context of a scientific or scholarly journal (SJ)

1http://www.eprints.org/self-faq/#What-is-Eprint. OAI (Open Access Archives) is mainly concerned with the interoperability of archives, be they in open access or not. OAI standards are essential elements of the open access archives, but their range of application goes well beyond this particular set of archives. A company could decide to use OAI tags to manage a proprietary and closed archive. 2http://www.eprints.org/self-faq/#self-archiving-vs-publication. 4.Stevan Harnad's suggestion generally elicits a number of worries generally expressed in terms of copyright. In response, he proceeds in two different ways, one dealing directly with copyright, the other dealing with SJ's publishing policies. Once again, a clear distinction must be established between the two, If a journal refuses to publish an article because a preprint has been made available on the web, this is not a question of copyright, but one of policy and, as such, it can be negotiated. This situation is often referred to as the “” from the name of the former editor of the new England Journal of Medicine3. With regard to copyright issues, Stevan Harnad reacts by a series of possible tactics that are all quite logical but may encounter various degrees of difficulties in the courts of various countries. For example, one may negotiate different copyright agreements with publishers, so as to allow the archiving of articles in open access archives, and that is iron-clad; alternatively, one may rely on the fact that the pre-print, unrefereed research paper is the author's exclusive property. In most cases, published refereed papers differ in some significant fashion from the submitted preprints, Harnad makes the claim that it is possible to circumvent copyright provisions by publishing the preprint plus a list of corrigenda allowing to move from the submitted paper to the published, refereed, version4. 5. Stevan Harnad's claim is that it is possible to adhere strictly to the existing SP concept and to create free access to SP. From a purely conceptual and logical standpoint, I believe he is quite right. What needs to be done now is fitting this largely conceptual and theoretical approach into a wider perspective so as to help scientists and scholars reclaim control over their system of communication, with the help of librarians and research administrators. A little more than waiting for the inevitable and the optimal will be needed5 for, alas, our world does not always follow the rules of rationality, however compelling they may seem. Stevan Harnad has been strongly influential in this whole debate and his insistence underscoring of the important distinction between what counts as copyright and what counts as publication has been crucial. Essentially, the distinction between what counts as copyright and what counts as publication allows to deal with each issue on its own terms: the copyright issue is a legal matter handled through laws and terms of contracts. It is part of a negotiation each author carries (or ought to carry) with his or her publisher in order to retain as much property of one's creation as is possible. In particular, the rights to archive one's papers in a personal or institutional archive is an important element of the negotiation. However, this negotiation should not be confused with the need to transform one's research paper (a pre-print) into a full publication (SP). This entails a double process of quality control and certification (QC/C to use Harnad's abbreviations) that is part of the scholarly and scientific culture. How this affects the implementation of open-access archives is the subject of this paper.

II Where intellectual and financial matters mesh.

The reason why copyright and publishing are often conflated and confused is that, in order to obtain the QC/C to promote a research piece into a publication, one needs to solicit a (SJ). Such a journal is staffed by a team of peers with an editor-in-chief, an editorial board and reviewers; it also includes input from non- peers: editors, layout specialists, printers, diffusion or even marketing specialists, etc. The latter categories of personnel may be part of a university press, a commercial press, or they may be professionals hired by the director of the journal. In short, a journal can be a stand-alone enterprise; it can also be part of research-related institutions (university presses, learned societies, university presses, departments or faculties, etc.) Finally, it can also be part of a commercial venture totally independent from academe. In the latter case, the gap between the academic ethos and the commercial imperatives will be the broadest. The Editor-in-chief the editorial board and the reviewers are all peers, but, as in Orwell's novel, some peers appear to be more equal than others. Acting as officers of a different kind of institution – namely a journal – the editorial staff (ES) enjoys a sort of extra-promotion over other colleagues that are not involved in SP. How this promotion is acquired is quite interesting as it mixes a number of considerations in a a variety of ways.

3See Stevan Harnad, “Ingelfinger Over-Ruled:The Role of the Web in the Future of Refereed Medical Journal Publishing”, http://www.ecs.soton.ac.uk/~harnad/Papers/Harnad/harnad00.lancet.htm. 4While attractive in principle, this approach may not reassure all scientists or scholars, and it may not even be sustainable in various courts of law. But let us keep the legal and the conceptual dimensions of this debate quite separate for the moment. 5Stevan harnad, “How to Fast-Forward Learned Serials to the Inevitable and the Optimal for Scholars and Scientists,” http://www.ecs.soton.ac.uk/~harnad/Papers/Harnad/harnad97.learned.serials.html. Typically, a group of scholars or scientists feel the need to launch a new publishing vehicle for various reasons. Lack of sufficient publishing outlets is most often invoked at that stage, but the evaluation may rest on reasons as diverse as disciplinary or specialty concerns, national or regional presence, linguistic presence, institutional visibility, group visibility.

Whatever the reasons, the group in question must marshal resources to launch the new venture and it is precisely at this juncture that the intellectual and the financial mesh. While it is difficult to imagine a publisher that would create journals just to be the deciding factor in the promotion of peers to the gatekeeper level, it is clear that by simply refusing to support a particular venture, or by suggesting different defining criteria for the new journal, a publisher (or a research administrator, or a granting agency) has some words to say about the promotion to gate keeping. The same is true when publishers survey existing, financially struggling, yet interesting journals to see which ones might be drafted into the company's “stable”: this may be viewed by some academics as a form of recognition that holds water from a truly academic viewpoint, although, from the publisher's viewpoint, it mainly looks as a possible money maker.

In short, the gate keeping promotion is achieved through a complex combination of factors where the values and forms of authority indigenous to a given scholarly specialty tend to mesh with the financial underpinnings that make the journal possible in the first place. An editor is (almost) always guaranteed intellectual freedom, but if the journal is not improving in terms of its and related criteria, chances are that a publisher will not go on supporting it forever, however good it may be intellectually. The same publisher may even drop it altogether, thus effectively demoting a particular group of gatekeepers. Consequently, complex, often latent, implicit, rarely openly expressed forms of negotiations go on constantly between the intellectual side of a given journal and its commercial/publisher side. And this is the shaky foundation on which SP rests. Let us now explore a first scenario. Let us imagine that an editor-in-chief sends a letter of acceptance to a scientist or scholar, thus stating that the QC/C phase has been successfully completed; along with the letter comes a copyright release form that, the editor says, is needed to print the paper. Suppose now that the author decides not to sign this release form or wants terms such that the publisher cannot accept. With the acceptance letter in hand, the author might decide that as the QC/C test has been successfully passed and as he he/she still owns the paper, he/she can simply publish (in the full sense of the term) the paper in a personal or while putting the letter of acceptance in some trusted place, for example the university personnel archive. In response to this alarming possibility, the editor can choose either of the following methods: on the one hand, he/she may decide to pressure the publisher to display more flexibility in the matter; alternatively, the editor may side with the publisher and change procedures, requiring for example that preprints will have been evaluated only if a copyright release, phrased in such a way as to cover eventual modifications of the paper, has been previously signed by the author(s). However, what is interesting is that the attitude of the editor-in-chief appears clearly at the border between the intellectual and the financial realms of the journal. For example, if the editor adopts a hands-off attitude with regard to the demands of the authors and simply relays them to the publishers, chances are that financial concerns will become primary and the paper will not be published; however, if the paper was a really good paper, it is a real loss for the journal and its impact factor may be affected by this decision. This becomes even truer if this kind of situation repeats itself frequently enough. Assume now that negotiations have broken down and the author has placed his research paper, along with the acceptance letter, in an institutional repository. Then comes promotion time. What will happen? Formally, the paper has passed all the tests of scientific publication, except for the actual editing and printing of the text (or its equivalent in the electronic world) by some recognized scientific publisher. The question is: does the QC/C letter of acceptance sufficient, or is the actual printing and diffusing also of the essence of SP? The latter points may be nothing more than the material facets of the whole publication process; yet they may play some judgmental role although most academics (with the possible exception of the publishers themselves) would probably recognize that it has little or no relevance to the intellectual content of a research paper6. With available open

6In a different context, think of J.-P. Sartre's refusal to accept the Nobel Prize. Once it had been announced publicly, Sartre could no longer lose the symbolic capital attached to the Prize; his refusal, fairly probably, increased it at least in some quarters that wereimportant to him; his only loss was the actual capital, the money, but it was not of the essence in this case. access archives that follow suitable standards (OAI in this case)and are linked to harvesting mechanisms7, the visibility of a research papers stands to be as great as if it were located within an important bibliographic tool such as, for example, Chemical Abstracts or the . By providing an alternative to actual publication by some press, of any nature, the presence of the Open Access Archive displaces the boundary between publishing and copyright a little by showing that not only they are not equivalent, but they are not even necessarily linked or adjacent in the process of SP.

At the same time, it relocates the question of SP a little as well. While the whole previous reasoning has squarely assumed that the normal, established form of QC/C based on SJ's was the only acceptable form of peer-review, it demonstrates that even within the journal, the interests between the editors and the publishers may not be at all the same, that conflict may arise. It also demonstrates that the QC/C part of SJ is not necessarily, almost ontologically, linked to the physical existence of the journal qua printed volume or particular set of digitized articles available from some depository. The hypothetical revolt move by our scholar shows also that the QC/C process is not enough: the research paper that has been peer-reviewed must be made available publicly, but the latter process is not necessarily accomplished under the same auspices as the QC/C process.

In short, although all the reasoning provided here tries to adhere to Stevan Harnad's conceptual definition of SP, it leads to an important consequence – namely that the process of QC/C can be thought of as separate and autonomous from the completed process of SP. In other words, SP depends on QC/C to exist, but the converse is not true. The conflation of SP with copyright and printing issues has only served to hide this somewhat banal, yet crucial point.

And as QC/C can easily exist without SP, it means that, as soon as open access archives come into existence, new forms of QC/C are going to be explored. Why? For one thing because it has already started. In fact, in an earlier paper8, I have shown how Elsevier, with its open chemical archive, was trying out new modes of evaluation based on various factors such as downloading discussions, etc., beside citation. From a very different perspective, our QC/C process is actually a little more complex and varied than the picture that Stevan harnad presents. Research grants correlate in some fashion with QC/C and the influences flow both ways; various prizes, all the way to the Nobel Prizes, complement and, in a sense, comment on the basic forms of QC/C. Looking for various ways to enrich the symbolic capital of scientists has been going on for a very long time, and this for a very simple reason: the ability to bestow an honour onto someone is a sure sign of some ability to wield some power, however limited. But, as in real capital, the trap of inflation is ever present and, for this reason, limits quickly appear. This said, the present of open access archives will lead to exploring new judgment processes and new reward systems in science.

Furthermore, the cost of commercial journals (and of bibliographic tools such ), severely curtails their accessibility despite their high visibility. Actually, their visibility is a function of their rarity, very much like expensive jewels. This is why I have been arguing for some time that the present system has promoted a form of visibility-through-exclusion, better known as elitism, at the expense of the older, natural system of science: a pecking order based on excellence. When excellence prevails, a continuum obtains from the mediocre to the best and personal quality is by far the main contributor to one's rank; in an elitist system, quality is not absent, but in and of itself, it does not guarantee access to the top; access to resources that are allocated on bases that have little to do with quality of individual is also important. This is why restoring the “kingdom of excellence” is important and the building of open access archive can contribute to this process. How? Being less accessible, the elite journals or databases will not be as heavily used as they might otherwise be, and this will translate into their being cited less often, all other factors being equal, than their open-access equivalents. In other words, open access will tend to favour those authors that will use such means of diffusion over those that will stick with proprietary, expensive journals, be they the most prestigious for the moment. And no amount of marketing will change this situation because Einstein never needed to market his ideas to be read and heard!

7http://oaister.umdl.umich.edu/. 8See “In Oldenburg's Long Shadow: Librarians, Research Scientists, Publishers, and the Control of Scientific Publishing,” http://www.arl.org/arl/proceedings/138/guedon.html. Now, let us return to our author with the acceptance letter in hand and the article safely stashed in a solid, institutional repository that is fully OAI compliant, that has implemented all the possibilities of cross-references through tools such as opcit9. Is he or she going to be promoted on the basis of such publications? The question is interesting because, once again, all the formal requirements for a publication have been thoroughly fulfilled; in some case they have demonstrably been fulfilled in ways superior to those provided by the commercial publishers. The matter, therefore, is no longer one of pure intellectual QC/C; it has to do with institutional issues such as pecking order and power relations among so-called peers; in short it intrudes into the politics of the institution and that is why it is such a difficult issue.

If a promotion committee, a dean or, more generally , an administrator were to refuse such a publication, it could not be for purely intellectual or quality reasons; any objective observer would have to agree that other factors are bearing onto the issue. Now this is barely an earth-shattering piece of news; however, in hashing out the ins and out of SP, people academics debating the implications of the open access archives will understand much more fully all the latent, largely invisible traits of the present, flawed, publication system. And that in itself will be very positive.

III Surveying the field: players, splits and alliances10.

This bit of clarification introduced, one my begin to examine which categories of people are involved in the publication system and how they are bound to position themselves according to their institutional and/or intellectual roles and functions.

Scientists as readers want free (i.e. without hindrance and without money) access to the . Ideally they want all and want it fully indexed to maximize the chances of retrieving all relevant pieces of work for their own work. They generally get an approximation of this ideal situation that goes from highly satisfactory to completely abysmal, depending on the conditions in which the libraries (in the widest sense) work. Obviously, a librarian in Tunis and one at Harvard University share the same objectives and values, but they do not command the same resources... Consequently, the Harvard scientist will be often satisfied or marginally dissatisfied while the Tunisian colleague will be highly frustrated. Whether these scientists understand what the librarians try to achieve and with what constraints is another matter: as a rule, they are blissfully ignorant of the working conditions of this particular “service layer” inside the institution.

Scientists as authors want access to the medium that will provide them with the greatest visibility, authority, prestige, etc. Whether they link the relationship between the sometimes extravagant costs of the journals where they publish with the financial difficulties of their libraries is doubtful at best.

As we have seen above, scientists as gatekeepers are located at the border of their culture or ethos and they stand in close interaction with an entirely different tribe - generally some commercially motivated entity that tries to translate this activity into a profit-making activity. As such, they are constantly juggling various objectives that mix symbolic and real capital in very interesting ways, to say the least about it.

What is interesting is that these three facets of the scientist do not necessarily come together into a harmonious whole. Clearly, the author and the gatekeeper have ample opportunities to clash, and so does the gatekeeper and the reader to the extent that the pricing policies followed by the publishers may well run against the access needs of the practicing researcher. In short, the group of scientists readily displays deep fault lines which must be remembered later.

The rest of the argument will now be severely summarized for lack of time.

9Http://opcit.eprints.org. 10This section summarizes in part elements of discussion that are more fully developed in my paper, “In Oldenburg's Long Shadow: Librarians, Research Scientists, Publishers, and the Control of Scientific Publishing,” http://www.arl.org/arl/proceedings/138/guedon.html. Through a similar analysis, I will examine the positions of librarians, university and research centre administrators, and various categories of publishers. Then, all these nuances and variety of positions will be tested against the distinction between SP and copyright and the exact positioning of the QC/C will be reviewed in each case.

At the end, various scenarios proposing various forms of alliances and their consequences will be sketched, showing which alliances could lead to truly negative consequences, and which alliances can lead to truly positive development. In parallel, the ways in which these alliances will be playing, extending (or restricting) the scope of QC/C will also be studied so as to demonstrate that, indeed, the future definition of QC/C will emerge as part and parcel of a reformed SP system. The question remains : which reform will win: that which advantages scholars and scientist, or that which advantages publishers?