(196–197) Proposals regarding unpublished materials (amendments to Article 6.1 and the footnote of Article 6.13)

Abstract

The Shenzhen Code (Turland & al. in Regnum Veg. 159. 2018) amended Art. 6.1 by adding the following sentence: “Except in specified cases (Art. 8.1, 9.4(a), 9.22, Rec. 9A.3, and Art. 40.7), text and illustrations must be effectively published to be taken into account for the purposes of this Code.” The Synopsis of Proposals for the Shenzhen Congress was prescient when it noted under the proposal (Art. 6 Prop. A) that resulted in this addition “there remains the worry that other unwanted consequences might exist” (Turland & Wiersema in Taxon 66: 221. 2017). Indeed, these worries are more than hypothetical: (1) The language fails to carve out an exception for an unpublished illustration as an epitype because Art. 9.9 is not specified as an exception under Art. 6.1. While there is an exception for Art. 8.1, that Article mentions only holotype, lectotype and neotype. (2) Various unpublished illustrations have been conserved as types under Art. 14.9. Because that Article is not specified as an exception in Art. 6.1, it is not clear that these conserved types are permitted. (3) Article 46.9 provides that “external evidence” can be used to attribute authorship in some cases. Recommendation 9A.1 and 9B.1 require “understanding” the author's practices and “critical knowledge”. Presumably, unpublished text and illustrations can no longer be taken into account for these purposes. Attempting to set forth all of the exceptions would require an exhaustive review of every provision in the Shenzhen Code, and consideration of whether each provision might in some way be implicated by the new rule in Art. 6.1. Future amendments may well require additional changes, and these may well be overlooked. For example, a recent proposal would amend the so-called usage test in Art. 9.1(b) to consider whether there is “evidence in the protologue or elsewhere” to establish that the original author of the name used only one element (Turland & al. in Taxon 69: 626–627. 2020). Due to Art. 6.1, this other evidence would be limited to published text. “6.1. Effective publication is publication in accordance with Art. 29–31. Except in specified cases (Art. 6.1, 8.1 and any reference to a type in this Code, 9.4(a), 9.9, 9.19, 9.22, Rec. 9A.1, 9A.3, 9B.1, and Art. 10.4, 40.7, and 46.9) or where the use of unpublished text or illustrations is explicitly or implicitly permitted, text and illustrations1 must be effectively published to be taken into account for the purposes of this Code.” To avoid possible confusion over the status of unpublished illustrations and text, the definition of protologue (Art. 6.13 footnote) should be clarified to include them. These materials may be useful for purposes of determining whether a type is superseded under Art. 9.19(c). “1 Protologue (from Greek πρώτος, protos, first; λόγος, logos, discourse): everything associated with a name at as part of its valid publication, e.g. description, diagnosis, illustrations, references, synonymy, geographical data, citation or reference of specimens, discussion, and comments. It also includes all illustrations published, cited, or referenced in the publication (including unpublished illustrations).” I thank Nicholas J. Turland and John H. Wiersema for their comments and suggestions, which improved these proposals.