I don’t normally do this, and I don’t plan on repeating it, but this topic seemed interesting enough to warrant a guest post. The following is from “Robert May”:http://kleene.ss.uci.edu/~rmay/.

bq.. Is it appropriate for a journal, as part of the keepers of the scholarly record, to publish articles that cite or discuss material that is not part of the publically accessible, permanent scholarly record?

My interest in opinions about this stems from a recent event in which I was involved. Let me recount.

In spring 2003 I commented on a paper presented at a conference. My remarks were given verbally with slides taken from written, prepared remarks. After the conference, the author and I engaged in an e-mail correspondence about the paper and my response, in the course of which the author suggested that we might submit our papers together to a certain journal. Shortly thereafter, the correspondence ended; I posted my response on my web-page and thought nothing more about it until a few weeks ago, when I received my latest issue of said journal containing the author’s paper. The text of the orally delivered version of the paper carries over in the main intact, containing one subtle but significant change from the original text in response to my comments, noted by the author. But more germanely, the published version has a new section, adding approximately 50% to the length of the paper, devoted exclusively to a critical response to my commentary. This was the first time I had seen this material, neither the author nor the journal having sent me a copy of the revised version of the paper.

Now I think most would agree that the author has at least displayed scholarly bad manners. But I am interested in the more general question of the appropriateness of a journal publishing in the first place a response to an unpublished work, which nevertheless does exist in some sense in the public record, having in this case been presented orally and also posted on the web. (The citation in the author’s paper is only to my oral commentary at the conference; the web version is not referenced.)

Legally, I have garnered from my university counsel that my response is copyrighted as my intellectual property, and the author’s use of my work falls within the fair use guidelines for copyrighted materials. I was also informed that the courts have been split over whether fair use applies only to published materials, or to unpublished materials as well.

But regardless of the exact legalities, I think there is an issue here that pertains to the customs of the scholarly community. Do we think citation of unpublished materials is appropriate, or should it be discouraged, and if so, how?

My own view is that the custom should be to preclude such use, unless done with permission of the author. My reason is that it is inherently unfair to the author of the unpublished material. The journal in question currently has a policy of allowing critical response to oral commentaries; suppose there were a commentary presented without any supporting written document. Then how would a reader of the published response know whether it is fair to what is being criticized, accurately representing the views that were expressed only orally? Is it fair to criticize when only one side of the story can be reliably accessed? Commentary at a conference has both parties on hand, in front of an audience. Shouldn’t it be the same when the audience is the profession at large? Surely one of the primary purposes of the publically accessible, permanent scholarly record, of which journals are a primary component, is to provide to all interested scholars the materials needed to make such evaluations, and to assess the fairness of the response.

Journals, (and publishers) as main components of the scholarly record, should make it their responsibility to ensure that responses meet a standard of fairness, perhaps by having explicit publication policies that restrict responses to material primarily published in organs of the publically-accessible, permanent public record. Such policies would have to be sufficiently nuanced – for instance, should positive discussion of an unpublished paper be governed by the same covenants as negative discussion – but clearly the central issue in such policies will be their attitude towards electronic self-publishing. Should self-posted web-based materials be treated on a par with articles in journals? Certainly they don’t for the purposes of our records for academic advancement.

I think the issues here are worth some discussion; the customs by which we comport ourselves as an academic community reflects the respect we have for the scholarly enterprise.