I have been delighted to see the “Durham Statement on Open Access to Legal Scholarship” getting lots of attention on the blogs and e-mail lists, and I couldn’t resist adding my own comments, as much out of local pride as because I have anything to add to the discussion.

The statement grows out of a meeting here at Duke amongst the law librarians from the top dozen or so US law schools.  As a call for open access, it goes well beyond most other declarations in a couple of ways.

First, the Durham Statement calls for law schools to simply stop publishing print versions of their journals.  The library directors note that this is especially pressing in a time of “growing financial pressures on law school budgets,” and they are quite right.  It is interesting that the issuance of this statement came only days  after the Association of Research Libraries issued its own statement about how publishers and libraries should deal with the economic emergency, in which a move to online only availability is also suggested.

One could argue that it is easier for law schools to suggest the transition to electronic only, open access publication because law school publishing is a unique model, where students do the editorial work and there is very little profit motive behind the publications.  But it is important to realize that the incentives for publishing legal scholarship are the same as those for all other scholarly publication — reputation and impact on the field.  So a model that works for legal scholars points the way toward new models that would also work for other types of scholarship.  Law journals are a proof of concept that show how unnecessary the print-based subscription journal really is to the foundational values of academia.

Another point of interest in the Durham Statement is that, in spite of its call for immediate open access, it also includes a clause urging faculty authors to retain their copyrights.  One might wonder why this is important if all law journal publication was online and free.  The Statement calls this “a measure of redundancy,” and that is a big part of the answer.  If academics retain their copyrights, they will be in a position to respond to changes in the means for distribution and use of their work.  We simply do not know what will come next as technology evolves, and it is the authors themselves who will have the best incentive to adapt and respond in ways that serve their own interests.  For that reason, even in an entirely open access world, authors should reserve their copyrights; the Durham Statement acknowledges this reality and suggests use of the Association of American Law Schools model agreement between authors and journal publishers.


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