Hi all, As in all things legal, only a court decision could really settle this issue. In the meanwhile, legal commentators can weight the various arguments, drawing upon similar court decisions and legal principles.
Unfortunately, neither Charles Oppenheimer nor Kevin Smith go much farther than simply stating their opposite conclusions: CO: the author transfers the copyright on the last (revised) version, but keeps the copyright on all previous versions (notably the submitted version). KS: the transfer of the copyright on the last version implies the simultaneous transfer for all previous versions, which are derivatives of one another. I really would like to read a legal discussion about this issue (but I think this forum is not the right place for it). Being no legal scholar myself, all I can say is that I find both conclusions unconvincing. I have much difficulty accepting Oppenheimer's statement that the extent of the difference between versions is irrevelant: what if the only difference is a few typos? Same for Smith's use of the notion of derivative works: it's true that an author keeps rights in all future derivative works (that is, works containing a significant part of his original work), but not obvious if or how the same reasoning can be used backwards (acquiring rights to previous versions upon transfer). However, all of this is not that important in practice, as OA advocates, including Oppenheim himself, don't recommend the so-called "Harnad-Oppenheim solution" anymore (archiving the pre-print with a corrigenda describing the changes made after peer-review). OA mandates are all about the final, revised version. Marc Couture
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