Open Access, Free Access to Law and Access to Canadian Legal Scholarship (Part 1)

[This is the first of a two-part column on open access and public access to Canadian legal scholarship within the free law movement. This week (October 21-27, 2013) is International Open Access Week. This annual global event, now entering its sixth year, is organized by the Scholarly Publishing and Academic Resources Coalition (SPARC) of the Association of Research Libraries (ARL) to promote the goals of Open Access to the public generally but especially within the academic and research communities, to demonstrate its benefits and to inspire wider participation in making Open Access a new norm in scholarly publishing. The following is my contribution to the week’s events.]

For more than three centuries, the publication of research findings in journals and other publications has been the basic means of communicating the results of research to the scientific and scholarly communities. Articles are reviewed before publication by a peer group of scholars and their recommended corrections and improvements incorporated by the author before final publication in the journal. Selection of articles for publication, peer review and editorial work are provided free-of-charge by the scholars while the publisher bears the costs of production and distribution, recovering costs through subscription sales.

Over time, the commercial production of scholarly journals developed from a service provided to research communities to an industry in its own right, where the motive was profit and not the advancement of knowledge. Today, the commercial publishing of academic journals is highly profitable, especially in the professional disciplines, with some science and medicine journals costing tens of thousands of dollars for a single subscription. Over 25,000 peer-reviewed journals are being published, almost 3,000 of them by Elsevier alone, another 2,400 by Springer (2,200 in English). Subscription costs have reached such levels that they consume the majority of the acquisitions budgets in our libraries, to the detriment of other materials and services, and in academic libraries contributing significantly to the levels of tuition and public support that pay for them. Journal costs have become so prohibitive that even the wealthiest university libraries can no longer afford them.

In addition to charging often unconscionable amounts for subscriptions, most commercial publishers have extremely restrictive licensing practices, in effect taking from authors their copyrights and assuming all rights and permissions for the distribution, reproduction and use of their work in perpetuity. Rather than promoting the dissemination of research and the advancement of knowledge, current journal publishing practices have become an obstacle to them. The traditional system of scholarly publishing is broken and no longer supportable; and hence, the “open access” movement for the publishing of scholarly works.

Open Access is the practice of providing unrestricted public access via the internet to peer-reviewed scholarly research. As stated in the opening of the Budapest Declaration (2002), the charter document of the open access initiative,

An old tradition and a new technology have converged to make possible an unprecedented public good. The old tradition is the willingness of scientists and scholars to publish the fruits of their research in scholarly journals without payment, for the sake of inquiry and knowledge. The new technology is the internet. The public good they make possible is the world-wide electronic distribution of the peer-reviewed journal literature and completely free and unrestricted access to it by all scientists, scholars, teachers, students, and other curious minds. Removing access barriers to this literature will accelerate research, enrich education, share the learning of the rich with the poor and the poor with the rich, make this literature as useful as it can be, and lay the foundation for uniting humanity in a common intellectual conversation and quest for knowledge.

In open access publishing, materials are published under a Creative Commons or other non-restrictive licence: authors retain ownership of the copyright to their content, but allow anyone to download, reuse, reprint, modify, distribute or copy the content as long as the original author and source are credited and there is no commercial purpose to the reuse, and no permission is required from the author or the publisher to do so.

Open access publishing is generally achieved in one of two ways. The first and ideal method is the “green” option, so-called because there are no costs incurred either by the author to get published or by the end user to access and use the published material. The ideal green option is to publish in one of the increasing number of quality, peer-reviewed, fully open access journals. These open access journals are generally though not necessarily available in digital format only, but they must be freely available on the internet. The Directory of Open Access Journals (DOAJ) currently lists almost 10,000 such journals from around the world. However, the more common form of green open access publishing is “self-archiving”: the author publishes her work in a standard journal, but retains permission either to upload (archive) a version of her publication – ideally a PDF of the final, edited paper as published in the journal but usually a pre-publication version (“pre-print”) – to an institutional repository or other repository, eg, the private Social Sciences Research Network (SSRN). (More on these repositories later.)

The other option for open access publishing is the “gold” option, so-called because of the cost. In the gold method, the author must pay an “article processing charge” (APC) to the publisher to cover related production costs. Though the journal is otherwise fully open access and free to all users on the web, all contributors must pay this fee to be published in it. A common variation on this option is a green-gold hybrid option: though the journal is not open access and authors do not pay to be published there, an author can pay the publisher an APC fee to obtain permission to self-archive a PDF copy of his published article in an institutional or other publicly-accessible repository. To facilitate open-access publishing by one of the more usual gold or hybrid options, many universities and research funding agencies now have “open access funds” to support faculty and researchers who want to publish in open access or hybrid journals.

Another hybrid option is the “embargo”: Whether or not an APC is paid, an author can obtain permission to self-archive a copy of her article after a set period of time (six months, one year, two years) has elapsed. This embargo option protects the publisher’s base of current, paying subscribers while freeing the article for open access distribution at some future date.

An “institutional repository” is the academy’s version of a law firm’s in-house knowledge repository, with the exception that it is available to the global public on the World Wide Web. It is an online repository to collect, preserve and disseminate in digital format the entire intellectual output of the institution. At a minimum, these would comprise articles published in scholarly journals (either pre-prints or post-prints), research and working papers, theses and dissertations. By extension, it might also include administrative documents, pedagogical materials such as course packs, and other digital assets generated by research activities. The purpose of the repository is to enable the communication of research, facilitate its use in research by others and promote the advancement of knowledge through open access; to create global visibility for the institution’s research activities and product (“branding”); and to preserve and organize the institution’s digital record in one location. A full listing of institutional repositories around the world is available in the Directory of Open Access Repositories (Open DOAR).

Self-archiving in a repository is gaining ground among faculty. Among other benefits, repositories increase the availability of research, permit reprinting or text mining, and enable work to be propagated across the internet and used for novel applications. Repositories also allow authors to keep track of how much and how frequently their work is downloaded and consulted by others. Most if not yet all universities, colleges and research institutions now have institutional repositories, usually the responsibility of a “scholarly communications” office within the library. On this continent, most institutional repositories have been built on either the open-source DSpace platform or the commercial Digital Commons platform. The latter hosts a large number of law school repositories, Osgoode Hall Law School soon to be among them.

Many individual faculty members eschew their institutional repositories for the Social Sciences Research Network (SSRN). Unlike institutional repositories, SSRN, though an open access repository, is focused more on communicating research to peer groups that making it accessible to the general public. Unfortunately, many faculty members, who often take a more atavistic than collective view of their work, prefer SSRN to their institution’s own digital repository, and our institutions (and the public) suffer as a consequence. SSRN also offers a rating system for institutions, based on the number of downloads of papers from the identified members of those institutions. Ratings are provided specifically for both American and International law schools. Just as many law firms are obsessed with their AmLaw rating, many law faculties are equally obsessed with improving their rating with SSRN, an obsession that is ultimately at odds with the open access ideals of unrestricted public access for research and education.

Like free access to law, open access is also public access – but more on that in part 2 of this article.

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