[Taxacom] Important note Re: two names online published - one new species

[Stephen Thorpe]

Rich, I hope you can now appreciate why it would have been better to carefully consider a selection of different publishing models BEFORE issuing the Amendment, and not one (and we all know which one!)

Anyway, I think that the following Article is problematic in the context of the present debate regarding "time window for publication": 

8.5.3.3. An error in stating the evidence of registration does not make a work unavailable, provided that the work can be unambiguously associated with a record created in the Official Register of Zoological Nomenclature before the work was published.

The key words are BEFORE PUBLICATION. One possible interpretation is: 

temporally prior to 'publication' in the sense that publishers use the term;

This would imply that if an electronic work is published without preregistration, then it can never comply with 8.5.3.3, unless you have a Tardis or other means of travelling back in time!

Now certain revisionist Commissioners are trying to reinterpret 8.5.3.3 as really meaning that "before a work can be considered to be published according to the Code (i.e. validly published), it must be registered on ZooBank.

Is this right or wrong? There is no answer to that until the ICZN issues a formal clarification.

Stephen

--------------------------------------------
On Wed, 27/1/16, Richard Pyle <deepreef at bishopmuseum.org> wrote:

 Subject: Re: [Taxacom] Important note Re: two names online	published	-	one	new species
 To: "'Paul van Rijckevorsel'" <dipteryx at freeler.nl>, taxacom at mailman.nhm.ku.edu
 Cc: "'engel'"'" <msengel at ku.edu>
 Received: Wednesday, 27 January, 2016, 7:56 AM
 
 Hi Paul,
 
 > I don't follow
 this.
 > 1) You start off by referring to
 Article 21.4, which deals with the date of
 > publication, in the sense of the Code.
 > And then you deny that the date of
 publication in Article 8.5.2 is intended as
 > the date of publication, in the sense of
 the Code.  If it is something different,
 > then it is pointless to refer to Article
 21.4, as it cannot apply.
 
 No, I did not "deny that the date of
 publication in Article 8.5.2 is intended as the date of
 publication".  Of course it is the intended date of
 publication!  But the key word here is
 "intended".  If I understood your position
 correctly, you seemed to suggest that inclusion of a date
 within the work somehow establishes a "window" of
 time within which all requirements for publication must be
 fulfilled, and if all requirements are not fulfilled within
 that stated window, the work cannot (ever) be regarded as
 being published.  If this were true, then there would be no
 need for articles that address dates incorrectly stated
 within the work. If I misunderstood your position, then I
 apologize.
 
 > 2) If the
 Editorial Committee intended something different why
 didn't they
 > put in something
 different?
 
 I'm not sure
 I understand your question.  If you are asking whether the
 Editorial Committee intended Art. 8.5.2 to apply to the
 intended date of publication, then we are in agreement. 
 Where we disagree is in my (incorrect?) interpretation of
 your position as being that the date included in the work
 must be treated as an exclusive time window, within which
 all criteria must be met.  The Code does not say that
 explicitly, and implicitly (e.g., Art. 21.2, 21.4) indicates
 that dates stated within the work may be treated as
 incorrect.
 
 > 3) The
 Preamble states "The meanings given to terms used in
 this Code are
 > those shown in the
 Glossary."
 
 Agreed; and
 the glossary defines the date of publication as: "the
 date on which copies of the work become available by
 purchase or free distribution. If the actual date is not
 known, the date to be adopted is regulated by the provisions
 of Article 21.2-7" It does not invoke the date as
 stated within the work of established a defined window
 within which the work must meet all criteria for
 publication. It does refer to Art. 21.2-7, and Art. 21.4
 addresses dates incorrectly stated within the work
 itself.
 
 The problem, of
 course, is that the glossary was not amended to accommodate
 the (novel) situation we have now where all criteria
 necessary for publication are no longer included within the
 work itself.  In 20/20 hindsight, we should have revised
 this definition along with the amendment to make it clear
 that the work becomes available when all requirements are
 met.  
 
 So we now have a
 situation where there is some ambiguity in determining the
 date of publication.  As I tried to explain in my first
 post to this thread, the Commissioners have recognized this
 problem, and most of the Commissioners I've spoken with
 agree that, in the context of this ambiguity, the interests
 of nomenclatural stability are best served through
 interpreting the date of publication as being the date on
 which all requirements are fulfilled.
 
 If you disagree that this is the best approach
 to addressing the ambiguity, then we should certainly
 discuss other approaches.  However, if you are trying to
 maintain that the existing wording of the Code unambiguously
 establishes (via Art. 8.5.2) that the date stated in the
 work itself defines a window within which all criteria must
 be met, and that there are no situations in which the date
 that fulfills the requirement of Art. 8.5.2 can be
 interpreted as "incorrect" in the sense of Art.
 21.4, then I completely disagree.
 
 
 > 4) Anyway, Article 8.5
 states three requirements for an electronically
 > distributed work, and you now postulate
 that the second of these
 > requirements
 does not apply?
 
 When did I
 postulate any such thing?  What I am refuting is your
 apparent assertion that the stated date within the work
 itself cannot be regarded as incorrect (i.e., the defined
 window within which all criteria be met).  Art. 21 clearly
 accommodates cases where the stated date of publication
 within the work are incorrect.
 
 > As the Code is written, it is very
 explicit: the publication must state the date
 > of publication.  
 
 Agreed.
 
 >
 And the Preamble makes it clear that, by definition, there
 is
 > just the one "date of
 publication", that of the Glossary.  
 
 Agreed.
 
 > If it appeared on
 >
 some other date, then the date of publication was not stated
 in the work
 > (but some other date), and
 thus the work does not meet the requirements of
 > Article 8.5.  
 
 Agreed, except I would qualify it slightly to
 say "... then the CORRECT date of publication was not
 stated in the work..."
 
 > It is not published in the sense of the
 Code.
 
 Then why do we have
 Art. 21.4?  What circumstances would Art 21.4 apply to? 
 Are you suggesting that it applies only to works produced on
 paper?  If so, on what basis would you make such a claim? 
 If not, then what, exactly, are we arguing about?
 
 > As to Article 21, it is
 not so much that it does not apply, but it does not bear
 > on the matter.  Article 8.5.2 states a
 simple, direct requirement, without
 >
 room for any qualification.
 
 And here, I think, is where we fundamentally
 disagree. 
 
 > Article 21
 might be thought to bear on the issue of establishing if
 something
 > did indeed appear on the date
 stated, but there is a logic trap.  Namely, if it
 > appeared on another date, it was not
 published in the sense of the Code, and
 >
 the whole Code does not apply (just as the Code does not
 apply to the latest
 > pop song).
 
 It seems you are putting a lot
 of words into the Code that are not there.
 
 > Anyway, that is what the
 Code says, leaving out any unwritten parts.
 
 At least we can agree on
 following what is in the Code, and not relying on any
 unwritten parts!
 
 I'm
 sorry, Paul - but I simply do not follow your logic.  I may
 well be misunderstanding your point, but it sounds like you
 interpret the wording of Art. 8.5.2 as somehow locking some
 sort of window of time, and not allowing for an incorrect
 date to be stated within the work itself.  I would almost
 agree that one could legitimately interpret it this way
 (among other legitimate interpretations). However, because
 the wording in Art. 8.5.2 mirrors that of 21.2 (both refer
 to a stated or specified "date of publication"
 within the work itself), and 21.2 clearly accommodates
 situations where evidence is contrary to such a stated
 "date of publication", I cannot see your position
 (at least as I understand it) to be legitimate.
 
 Aloha,
 Rich
 
 _______________________________________________
 Taxacom Mailing List
 Taxacom at mailman.nhm.ku.edu
 http://mailman.nhm.ku.edu/cgi-bin/mailman/listinfo/taxacom
 The Taxacom Archive back to 1992 may be
 searched at: http://taxacom.markmail.org
 
 Celebrating 29 years of
 Taxacom in 2016.