68th IFLA Council and General Conference August 18-24, 2002 The publication/copyright distinction and its strategic implications for the successful implementation of Open Access Archives Jean-Claude Guédon Université de Montréal I Scholarly publishing 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 eprint is the digital text of a peer-reviewed research article. Before refereeing and publication, the draft is called a "preprint." The refereed, published final draft is called a "postprint."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 peer review, 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 preprints, 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 “Ingelfinger Rule” 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 scientific journal (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.