Taxacom: Excluded names and availability

Mon Jun 13 17:59:51 CDT 2022

I believe the answer is easy for the public, but the Glossary's 
definition of "excluded name" seems incorrect.

Glossary:

"unavailable name. A scientific name that does not conform to Articles 
10 to 20, or that is an excluded name under Article 1.3."

So the answer should be, if it is an excluded name under Art. 1.3, it is 
an unavailable name. These names (all these names) are unavailable 
because they are excluded.

The rest is less easy to understand.

Doug cited the Glossary definition for an excluded name:

"excluded name. A name that under Article l.3 cannot be an available 
name, or one that has been disclaimed (see Articles 8.2, 8.3)."

The question is why this definition contains a statement about the 
disclaimers.

I think a scientific name that is disclaimed is not "nothing", not "not 
considered either available or unavailable", it is an unavailable name.
Following an application the Commission can render such a disclaimed 
(and thus unavailable) name available under the plenary power, by 
setting aside the provisions of Art. 11.1 or Art. 8.3 for this special 
case. If it was "nothing" then the Commission could not do that. A name 
in a spoken communication is "nothing" and the Commission could not do 
very much with it.

Code-3 (from 1985) had this definition:
"excluded name. A scientific name that under Art. 1b cannot be an 
available name".
(Art. 1b had the content of Art. 1.3)
Code-3 had a disclaimer option in Art. 8b for publications and names 
(equivalent to Arts. 8.2 and 8.3), but these disclaimers were not 
mentioned in the Glossary definition.

So the disclaimers were added to the Code-4 Glossary definition. For 
unknown reasons, and after the public review period 1995-1996.

We can look at the two referenced Articles separately.

If the name is published, but the publication is disclaimed (Art. 8.2), 
the work will not be published within the meaning of the Code.

"8.2. Publication may be disclaimed. A work that contains a statement to 
the effect that it is not issued for public and permanent scientific 
record, or for purposes of zoological nomenclature, is not published 
within the meaning of the Code."

This is the statement of Art. 8.2. It will have the effect that the 
requirement of Art. 11.1 (an available name must be published) will not 
be satisfied and the name will be unavailable. Art. 8.2 does not provide 
a regulation by which such a name will be excluded from the provisions 
of the Code.

Art. 8.3 allows authors to disclaim names for nomenclatural purposes, 
such names are not available.

"8.3. Names and acts may be disclaimed. If a work contains a statement 
to the effect that all or any of the names or nomenclatural acts in it 
are disclaimed for nomenclatural purposes, the disclaimed names or acts 
are not available. Such a work may be a published work (i.e. taxonomic 
information in it may have the same nomenclatural status as the 
taxonomic information in a published but suppressed work: see Article 
8.7.1)."

The cross-reference to Art. 8.3 in the Glossary is confusing, because 
such names are not excluded, they are "not available".

Since the contents of Art. 8.2 and 8.3 do not provide specifications on 
excluded names, all excluded names follow Art. 1.3. This means, 
including the cross-references in Code-4 was ineffective.

The cross-references could imply that authors can expressly "exclude" 
names for the purposes of nomenclature in disclaimers, with the effect 
that they will be excluded and fall into the frame of Art. 1.3, but 
Arts. 8.2 and 8.3 do not expressly provide this option. Such disclaimers 
under the legal text of the Code can only have the consequence of 
unavailability.

So the cross-references to the disclaimers can probably be ignored.

Best wishes
Francisco

-----
Francisco Welter-Schultes

Am 13.06.2022 um 19:30 schrieb Mike Sadka via Taxacom:
> Thanks Doug
> 
> I should have realised it's never a simple either or answer!
> 
> Cheerio, Mike
> 
> 
> -----Original Message-----
> From: Taxacom <taxacom-bounces at lists.ku.edu> On Behalf Of Douglas Yanega via Taxacom
> Sent: 13 June 2022 18:22
> To: taxacom at lists.ku.edu
> Subject: Re: Taxacom: Excluded names and availability
> 
> On 6/13/22 10:14 AM, Mike Sadka via Taxacom wrote:
>> Hi
>>
>> I have a question about excluded names and their relationship to availability.
>>
>> Is it the case that excluded names are not considered either available or unavailable because they are excluded, or are such names unavailable because they are excluded?
> 
> It depends on why it is excluded.
> 
>   From the Glossary:
> 
> "*excluded name*
> 
>      A name that underArticle 1.3
>      <https://nam10.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcode.iczn.org%2Fzoological-nomenclature%2Farticle-1-definition-and-scope%2F%23art-1-3&data=05%7C01%7Ctaxacom%40lists.ku.edu%7C72140deab40e44fe7f5908da4d906cc1%7C3c176536afe643f5b96636feabbe3c1a%7C0%7C0%7C637907579943438766%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=vzt2IJfkwJRu3sh50c7H0W7t18CYAWZ%2BJNqxPVVJON4%3D&reserved=0>cannot
>      be an available name, or one that has been disclaimed (see
>      Articles8.2
>      <https://nam10.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcode.iczn.org%2Fcriteria-of-publication%2Farticle-8-what-constitutes-published-work%2F%23art-8-2&data=05%7C01%7Ctaxacom%40lists.ku.edu%7C72140deab40e44fe7f5908da4d906cc1%7C3c176536afe643f5b96636feabbe3c1a%7C0%7C0%7C637907579943438766%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=TKLUXN1V%2BcrMyLVFh39FKYRUeuN8LL1ROIPsWkLGzSU%3D&reserved=0>,8.3
>      <https://nam10.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcode.iczn.org%2Fcriteria-of-publication%2Farticle-8-what-constitutes-published-work%2F%23art-8-3&data=05%7C01%7Ctaxacom%40lists.ku.edu%7C72140deab40e44fe7f5908da4d906cc1%7C3c176536afe643f5b96636feabbe3c1a%7C0%7C0%7C637907579943438766%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=CCkIoxJ5zZ3AOQMAMCJp%2BnSP4WmgkOsR7itRIYIL%2B84%3D&reserved=0>)."
> 
> A few under the former are unavailable names, but most are nothing. The latter category is unpublished, and therefore also neither available nor unavailable.
> 
> Peace,
> 