Open Access, Free Access to Law and Access to Canadian Legal Scholarship (Part 2)

[This is the second of a two-part column on open access and public access to Canadian legal scholarship. The first part is available here.]

There is an overwhelming public good and social benefit to be obtained from open access publishing. The principle that the results of research that has been publicly funded should be freely accessible in the public domain is itself a compelling one, and fundamentally unanswerable. Arguments in support of mandatory open access publishing are even more compelling when the university is a public one and the researcher’s salary is supported by public funds. The US National Institutes of Health require scientists to submit final peer-reviewed journal manuscripts that result from NIH-funded research to PubMed Central, the NIH’s publicly-funded digital library within the US National Library of Medicine. Unfortunately, the public research funding agencies in Canada – the Social Sciences and Humanities Research Council (SSHRC), the Canadian Institutes of Health Research (CIHR) and the Natural Sciences and Engineering Research Council of Canada (NSERC) – though well-intentioned, are non-committal about open access.

Open access is also public access.

The concept of free access to law is well established in Canada. CanLII (the Canadian Legal Information Institute) is recognized as a world leader in providing free access to Canadian law. Our governments, legislative bodies and courts have shown leadership in minimizing the constraints of Crown copyright (for American readers, this means putting materials in the public domain) and providing access to comprehensive collections of public legal resources on well-designed websites. But who is providing access to Canadian legal scholarship?

Common law legal concepts and research methods make a strong distinction, less pronounced in the civil law tradition, between primary sources of law (statutes and case law) and secondary sources (legal scholarship and commentary); regardless, access to interpretive commentary on the law, including legal scholarship and especially publicly-funded research, would significantly enhance the public’s understanding of the law and their rights, and promote access to legal services generally. This relationship is stated explicitly in the Calgary Statement on Free Access to Legal Information / Déclaration de Calgary sur le libre accès à l’information juridique, adopted by the Council of Canadian Academic Law Library Directors in May, 2011.

In North America, we in Law are fortunate that so many of our law journals – more than 600 law reviews in the US alone – are published at law schools by non-paid student editors on a not-for-profit basis. Many of these journals are freely available as open-access publications on publicly-accessible websites within their schools’ institutional repositories; indeed, in keeping with the objectives of the Durham Statement on Open Access to Legal Scholarship, many American law reviews are moving from print production, supported by subscription fees, to freely-available digital-only formats. The law school at Duke University recently announced that six of the nine law reviews published at their school will move to digital-only publication. All nine of the titles are already available open-access on the Duke Law Scholarship Repository, an a collection of all published scholarship published by the faculty there. In Australia, the Australasian Legal Information Institute (AustLII) provides free access to over 80 Australian and New Zealand law journals as well as a growing number of law texts and monographic series. In Britain, BAILII, despite funding problems, offers access to two complete journals. In Canada, though almost all our law school-published law journals are available on commercial digital services, only ten (listed below) are available open-access. None is available through CanLII or any other publicly-accessible collection.

• University of Alberta’s Constitutional Forum and Review of Constitutional Studies
• Dalhousie Journal of Legal Studies
• Manitoba Law Journal
• McGill Law Journal/Revue de droit de McGill
• Osgoode Hall Law Journal
• Ottawa Law Review/Revue de droit d’Ottawa
• Queen’s Law Journal (current issue embargoed)
• Revue de droit de l’Université de Sherbrooke (RDUS)
• Western University’s Journal of Legal Studies

The Barreau du Québec’s Revue du Barreau is available open-access. The CBA’s Canadian Bar Review, on the other hand, is not. Quebec’s Centre d’accès a l’information juridique (CAIJ) and its JurisBistro, with a website available in both French and English, provides access to a surprisingly wide range of professional, full-text legal commentary (doctrine, in French), as well as annotated legislation (including an annotated Civil Code) and an extremely useful list of Research Questions, arranged topically by field of law, with links to legislative and interpretive sources available on the site. One could argue that CAIJ’s offering is not “scholarship”, but that does not lessen the value of its contribution.

Regrettably, what open access there is to legal scholarship is piecemeal and dispersed. Unlike aggregated collections of legal information such as Lexis, Westlaw and others, repositories of open-access legal scholarship function at the institutional level. However, because these repositories are web-based and publicly accessible, they can be indexed by internet search engines, and Google has become the principle means of searching, discovering and retrieving their contents. There have also been several efforts at centralizing and consolidating access to the American institutional repositories of legal scholarship, at least those built on the Digital Commons software platform from bepress (Berkeley Electronic Press). The first of these – Law Commons – provides centralized, consolidated access to almost 200,000 law-related scholarly articles from the institutional repositories of not only the 47 law school repositories on Digital Commons, but from the hundreds of academic institutions worldwide using the platform. A subset of this collection is the Law Review Commons, which brings together in one place a growing collection of more than 75,000 articles from law reviews and legal journals published on the Digital Commons platform. Finally, there is the NELLCO Legal Scholarship Repository, from the New England Law Library Consortium (NELLCO). Though built on the Digital Commons platform, this repository provides free and persistent access to articles, working papers, reports, lectures series, workshops and other scholarship created by faculty at NELLCO member schools whether or not they are themselves Digital Commons customers. Consequently, it includes law-related scholarship from the institutional repositories of Harvard (DASH), Columbia (Academic Commons) and New York University (Faculty Digital Archive), all built on the DSpace open source repository platform. Unfortunately, though a number of Canadian law schools are NELLCO members, none is currently participating in the NELLCO Legal Scholarship Repository program.

All of this poses the question of whether academic legal “scholarship” (as opposed to legal analysis and commentary from professional and practice sources) is necessary and even relevant to a public hungry for legal information. The classic critique of academic legal literature is Yale law professor Fred Rodell’s 1936 essay “Goodbye to Law Reviews”, Virginia Law Review 23 (1936-1937), 38-45, in which he starts by saying: “There are two thing wrong with almost all legal writing. One is its style. The other is its content.” In a recent article in the New York Times (“The Lackluster Reviews That Lawyers Love to Hate”, October 21, 2013), Adam Liptak argues that law review are not really meant to be read. They mostly exist as a way for law schools to evaluate professors for promotion and tenure, based partly on their success in placing articles in prestigious journals. The judge, lawyer or ordinary reader looking for accessible and timely assessments of the law is much better off turning to the many excellent law blogs.

But this is beside the point. The point is expanding and improving access to legal literature for the benefit of all who have a stake or interest in the research and its results, enhancing access to justice by facilitating access to legal information. So far, people outside law schools and large law firms – ie, people in business and the professions, in the public and not-for-profit sectors, non-specialists and members of the public generally, without access to Lexis, Westlaw or Hein Online – have yet to see the benefits that the online environment could bring in providing access to legal research and its results. Barriers to access – including traditional means of communicating and publishing scholarly research, aggravated by traditional tenure evaluation practices, and especially publishers’ restrictive copyright licensing practices – are increasingly unacceptable in an online, born-digital world. The principle that the results of research that has been publicly funded should be freely accessible in the public domain is a compelling one, and fundamentally unanswerable. The effective and sustainable publication and dissemination of research and scholarship is essential to realising these principles. To date, we in Canada have not been doing a great job, despite demonstrated leadership in providing access to primary sources of legal information. We – librarians, faculty and perhaps even regulators – must do better if we are ever going to realize these goals.

For those interested in expanding open access for scholarship, including monographs, with a considered and continuing role for formal publication and publishers, I would recommend reading The Finch Report (Accessibility, Sustainability, Excellence: How to Expand Access to Research Publications: Report of the Working Group on Expanding Access to Research Findings), chaired by Dame Janet Finch and submitted to the UK Department of Business Innovation & Skills on July 16, 2012.