"Open Access," Legal Publishing, and Online Repositories

JLME COLUMN Reviews in Medical Ethics

“Open Access,” Legal The Open Access Movement main- make possible an unprecedented tains that all scientific and scholarly public good. The old tradition is Publishing, and Online literature should be available to all the willingness of scientists and Repositories for free via the Internet. This con- scholars to publish the fruits of cept is not new. Some scholars trace their research in scholarly jour- its roots as far back as 1963 when nals without payment, for the Pamela Bluh “hypertext” was first introduced.1 Al- sake of inquiry and knowledge. though the Open Access Movement The new technology is the inter- may have originated more than net. The public good they make fifty years ago, it has been fueled by possible is the world-wide elec- more recent events, including the tronic distribution of the peer- unremitting escalation of journal reviewed journal literature and subscription prices over the last two completely free and unrestricted decades, resulting in massive cancel- access to it by all scientists, schol- lations of journals by academic li- ars, teachers, students, and other braries; the ubiquitous nature of the curious minds. Removing access Internet and the parallel explosion of barriers to this literature will electronic resources; and the desire accelerate research, enrich edu- of authors to find a new publishing cation, share the learning of the model which continues to offer the rich with the poor and the poor benefits of peer review while provid- with the rich, make this literature ing for more rapid publication and as useful as it can be, and lay the wide-spread distribution than the foundation for uniting humanity current labor-intensive, time-con- in a common intellectual conver- suming model. sation and quest for knowledge.2 The Open Access Movement has resulted in a number of online re- Building on this lofty goal, a group of positories devoted to legal analysis scientists met in Chevy Chase, Mary- and policy. This column explores the land in April, 2003, and drafted the genesis of the movement, its value Bethesda Statement on Open Access to researchers and policymakers, Publishing. This statement outlined and provides an overview of the two the steps necessary “to promote the principal open access products in rapid and efficient transition to open the legal arena. access publishing” and described the characteristics of an open access The Genesis of Open Access publication: In 2002 and 2003, a number of events affirmed the open access [T]he author, or authors, and concept, starting with the Budapest the copyright holder, or holders, Open Access Initiative, which states: grant(s) to all users a free, ir- revocable, worldwide, perpetual About this Column An old tradition and a new right of access to, and a license technology have converged to to copy, use, distribute, transmit Robin Wilson, J.D., serves as the Review Editor for The Journal of Law, Medicine & Ethics. Professor Wilson is Pamela Bluh, M.L.S., is Associate Director for Technical Services & Administra- an Associate Professor at the Univer- tion at the Thurgood Marshall Law Library, University of Maryland School of sity of Maryland School of Law and presently serves as Chair-Elect of the Law. In addition to her responsibilities for “traditional” technical services activi- Section on Law, Medicine and Health ties, Bluh also manages the school’s Research Papers Series in the Legal Scholarship Care of the Association of American Network. She is active in the Association for Library Collections & Technical Ser- Law Schools. vices (ALCTS), a division of the American Library Association, and presently serves ([email protected]) as editor of the ALCTS Papers in Technical Services & Collections Series. She was the recipient of the 2004 Bowker/Ulrich’s Serials Librarianship Award.

126 the journal of law, medicine & ethics Pamela Bluh

and display the work publicly and infrastructure be supported by In order to retain rights to their re- to make and distribute derivative the development of software search, legal scholars routinely use works, in any digital medium for tools, content provision, meta- documents such as the Open Access any responsible purpose, subject data creation, or the publication Model Publication Agreement de- to proper attribution of author- of individual articles.4 veloped by the Creative Commons ship, as well as the right to make and Science Commons Open Access small numbers of printed copies What does this mean for legal and Law Program,6 and the model au- for their personal use; policy research and publishing? thor/journal agreement drafted by the American Association of Law and, Legal and Policy Analysis Schools.7 Many authors also main- Researchers in the sciences and in tain personal Web pages where they a complete version of the work medicine were early supporters of self-archive their work, and even and all supplemental materials, the open access concept. Within the more are discovering the benefits including a copy of the permis- scientific, technical, and medical of posting their work to an online sion as stated above, in a suitable (STM) community the movement scholarly repository, such as the standard electronic format is de- has a high profile and considerable Social Science Research Network posited immediately upon initial international support, in contrast (SSRN) and the Berkeley Electronic publication in at least one online to the social sciences and humani- Press (bepress).8 repository that is supported by an ties communities, where open ac- academic institution, scholarly cess has been gaining acceptance Online Repositories society, government agency, or at a slower pace. In the community SSRN was established in 1994 as a other well-established organiza- of legal scholars and policymakers, non-profit corporation “devoted to tion that seeks to enable open open access policy is still in its in- rapid worldwide dissemination of access, unrestricted distribution, fancy. The Directory of Open Access social science research.”9 The SSRN interoperability, and long-term Journals5 lists 1,988 titles, of which repository includes more than archiving.3 only 43 concern law. Two reasons 106,000 documents10 and is growing in particular may explain why legal at the rate of approximately 1,400 Several months after the Bethesda scholars and publishers have been new submissions a month.11 Under statement was issued, the Confer- slower to embrace the concept of its umbrella, SSRN maintains ten ence on Open Access to Knowledge open access than scholars in other specialized networks,12 including the in the Sciences and Humanities disciplines. First, the majority of Legal Scholarship Network (LSN), drafted the Berlin Declaration on legal scholarship appears in law which is devoted to publishing re- Open Access to Knowledge in the Sci- reviews which are frequently non- search related to law, economics and ences and Humanities, where sup- commercial enterprises subsidized business. LSN, like SSRN’s other port for Open Access was reiterated. by their parent institutions. This specialized networks, is directed by The following steps for the transition allows the law reviews to maintain a prominent group of scholars and to an open access publishing model subscription prices at reasonable is dedicated to cost-effective, timely were recommended: levels and insulates them from the distribution of research and unre- effects of massive cancellations ex- stricted communication with peers • that researchers be encouraged perienced by publications in other around the world. to publish their work in keeping sectors, particularly in the sciences LSN hosts research and working with the principles of and medicine. Second, law reviews paper series on behalf of institutions open access; are usually edited by students, who and organizations and maintains • that holders of cultural heri- also evaluate the submissions. Peer specialized subject databases, called tage be encouraged to support review, so crucial in other disci- “journals.” Many law schools avail open access by making their plines, is generally not a consider- themselves of LSN’s hosting services resources available on the ation in the field of law. to support one or more publication Internet; Although this is a very skeletal series in Law & Economics, Public • that mechanisms be developed view of legal publishing, it sheds Law & Legal Theory, Science, Tech- to evaluate open access contri- some light on why the Open Access nology & Innovation, and Legal butions and on line journals in Movement has received relatively Studies. order to maintain standards little attention in legal publishing SSRN continues to adhere firmly of quality and good scientific circles. to the principles of the Open Access practice; Although legal scholars have been Movement so authors are able to • that open access publication be slower to recognize the value of open post and, for the most part, down- recognized for promotion and access than scholars in the sciences load papers free of charge. Receiving tenure; and and medicine, a small but growing email notification about recently- • that the intrinsic merit of con- number are now beginning to ap- posted material in the institutional tributions to an open access preciate and even reap its benefits. series is also free, although notifica-

defining the beginning and the end of human life • spring 2006 127 JLME COLUMN tion about the contents of the topi- and dissemination.”14 The founders model, bepress has expanded since cal journals is available only by sub- of bepress made a calculated deci- 2000 into other areas of electronic scription. Institutions that maintain sion to keep their publications avail- publishing. In addition to a growing a research or working paper series able only electronically, and to have number of peer-reviewed journals, pay a fee that covers the cost of host- no print counterparts. Bepress’ ap- it now supports an array of services ing and editorial support. In addition proach to publishing stems from the including a legal repository of work- to the research and working papers premise that traditional publishing ing papers, as well as institutional series and the subject matter jour- models were no longer viable, and and subject matter repositories.16 It nals, SSRN maintains relationships that a new publishing model was has also developed several software with a number of major publishers not only essential for the future well- packages specifically designed to fa- through its “Partners in Publishing” being of scholarly intercourse, but cilitate the article submission process program, where publishers give per- could be achieved in a cost-effective and help editors manage the flow of mission for abstracts of articles to be manner without sacrificing quality. manuscripts.17 There is no charge for posted to SSRN. These partners in- The elimination of overhead asso- submitting papers to the repository and they may be downloaded for free. Bepress also maintains a free Despite different philosophies, different email notification service to inform management styles, and a different array of subscribers when new papers are posted. products and services, both SSRN and bepress are Aside from the similarities in the dedicated to providing scholars with the widest hosting services offered by SSRN and bepress, the two organizations differ possible audience for their work and with giving in a number of ways beyond their re- their audiences access to that scholarship. spective not-for-profit and for-profit statuses. At the core of both organi- zations are services to facilitate the clude a number of major commercial ciated with traditional print publi- spread of scholarship as broadly as publishers such as Academic Press, cations revealed lower production possible. SSRN fulfils this role pri- Blackwell, Kluwer Law International costs and more efficient publishing. marily as an expeditor and facilitator. and Oxford University Press, as well Bepress also introduced the concept Bepress practices a more “hands-on” as associations including the Ameri- of a “journal-family” – several publi- form of management, particularly can Bar Association and most law cations focused on different aspects with regard to its responsibilities as schools in the U.S. Contributions re- of a single subject. Instead of being a publisher providing peer review. ceived on the basis of these arrange- considered for publication in a single This fundamental difference gives ments greatly enhance and enlarge journal, a paper submitted to bepress the two organizations their distinc- the database.13 is considered for one of several re- tive character and shapes the course When a paper is posted online, lated titles and, based on its quality, each pursues in promoting research it is assigned a number of descrip- it is assigned to a publication. At the and scholarship. tive “metadata” elements that iden- center of this change is a revolution- An obvious difference between the tify it for purposes of classification ary concept that preserves the value two organizations emerges in their and retrieval. Although papers may of peer review but circumvents the approach to journal publishing. be contributed to SSRN on an indi- process of submitting an article ex- SSRN supports a variety of “subject vidual basis, those that are affiliated clusively to one journal after another. matter journals,” the content of which with an institutional series and also It thus guarantees that “every paper consists largely of articles published contributed to one or more subject with a minimum quality level can be either in the journals with whom journals receive the widest possible published, but not every paper gets they have established formal rela- exposure. published in the more prestigious tionships, or linked to content posted Bepress, a private, for-profit cor- Gold series.”15 to their various networks. Although poration, was launched in 1999 by In 2000, bepress launched its first SSRN refers to them as “journals,” several colleagues at the University of two peer-reviewed online economics the term is somewhat misleading in California at Berkeley who were frus- journal “bundles:” B.E. Journals in the traditional sense of selection for trated by spiraling journal subscrip- Macroeconomics and B.E. Journals inclusion. The SSRN model depends tion prices and the huge pre-publi- in Economic Theory, demonstrating entirely on self-submission. Although cation delays authors experienced that the entire process from submis- there is some editorial oversight of under the traditional system of peer sion and peer review to acceptance the submitted material, SSRN relies review. Like SSRN, bepress seeks to and publication could be managed on authors themselves to exercise suf- “improve scholarly communication in eight to ten weeks. ficient judgment in submitting high by providing innovative and effec- Established initially as an alter- quality material. The management tive means of content production native to the standard publishing of SSRN holds that “…no filters [are

128 the journal of law, medicine & ethics Pamela Bluh applied] other than the paper should line, bepress provides authors with References be part of the worldwide scholarly download information on a monthly 1. P. Suber, Timeline of the Open Access discourse.…[and they have] followed Movement, at (last vis- the principle, ‘Let a thousand flowers briel Bankier explains: ited January 12, 2006). bloom.’”18 Nevertheless, they provide 2. Open Society Institute, Budapest Open a very effective mechanism for the Authors with papers in the Access Initiative, at (last visited January 12, 2006). material through a variety of chan- emailed download statistics every 3. Bethesda Statement on Open Access Pub- 19 nels. month. We have seen that papers lishing, June 20, 2003, at ing peer-reviewed, original work of Legal Repository have compa- (last visited January 12, 2006). a quality equal to that found in con- 4. Berlin Declaration on Open Access to rable downloads-per-posted- Knowledge in the Sciences and Humani- ventional print publications at sub- days rates. This isn’t an issue of ties, at (last than those of its competitors.20 Since we are concerned that popular- visited January 12, 2006). launching its first two online eco- ity and scholarly value not be 5. DOAJ, Directory of Open Access Jour- nals, at (last vis- nomics journals, bepress’ experience conflated. SSRN feels differently, ited January 12, 2006). has shown that its publication model and this is reflected in their ap- 6. Creative Commons and Science Com- is fiscally viable and is subject-matter proach. It’s an honest difference mons, Open Access Law Model Publica- neutral, and therefore eminently suit- of opinion. I think at the end of tion Agreement, at (last visited the day, authors want their re- January 12, 2006). The other major distinction be- search to be read by those who 7. American Association of Law Schools, tween the two concerns the way each would learn and benefit from it. Model Author/Journal Agreement, at provides information about the num- This means creating multiple (last visited Janu- ary 12, 2006). SSRN prominently displays informa- via SSRN, bepress, law reviews, 8. Social Science Research Network, at tion on the number of times a paper institutional repositories and (last visited has been downloaded and how many other venues.23 January 12, 2006); Berkeley Electronic times an abstract has been viewed. Press, at Critics charge that by emphasizing (last visited January 12, 2006). Conclusion 9. Social Science Research Network, Fre- the download statistics, SSRN gives Despite different philosophies, quently Asked Questions, at (last visited January 12, 2006). tive of its scholarly merit. Critics also services, both SSRN and bepress For additional background information on SSRN, see The Publisher, at (last visited January 12, the system.21 While it is possible to for their work and with giving their 2006). fraudulently increase the number of audiences access to that scholarship. 10. G. Gordon, SSRN’s 2005 Year-End times a paper is downloaded, SSRN President’s Letter, December 23, 2005, They are enterprising, visionary email message to the author. believes that the attendant risk is organizations, skillfully harnessing 11. G. Chianese, Associate Publications Edi- negligible and is outweighed by the the power of the Internet and tor, Research Paper Series, email mes- value of making the information successfully persuading scholars sage to the author, December 14, 2005. available publicly: that long-standing, entrenched 12. SSRN also includes: Accounting Re- search Network (ARN); Economics practices, procedures and points of Research Network (ERN); Entrepre- Although very rare, we have had view must be transformed. They are neurship Research & Policy Network a few instances where we have solidly committed to the principles (ERPN); Financial Economics Network identified an individual trying of the Open Access Movement and (FEN); Information Systems Network to increase download counts for (ISN); Legal Scholarship Network are actively engaged in promoting (LSN); Management Research Network themselves or others. In those the concept of open access within the (MRN); Marketing Research Network situations we discuss the matter legal community. These repositories (MKTG); Negotiations Research Net- with the person and make ad- are an underutilized tool for legal work (NEG); Social Insurance Research justments to the numbers. This research policy. Policymakers and Network (SIRN). 13. Social Science Research Network’s Part- is a time consuming process but researchers should mine these ners in Publishing, at (last visited January 12, 2006). 14. J. Bankier, Berkley Electronic Press, Bepress approaches the matter of email message to the author, November 30, 2005. downloads differently. Rather than 15. Campus Technology, In Print: The Digi- make the information available on- tal Academic Press: An Interview of Rob-

defining the beginning and the end of human life • spring 2006 129 JLME COLUMN

ert D. Cooter, at (last visited January 12, 2006); technology.com/article.asp?id=6332> offers see EdiKit(r) Back Office Solu- G. Smith, Gaming SSRN, November 10, (last visited January 12, 2006). Bepress tions, at (last visited January 12, Economics, Society website, at (last visited gaming_ssrn.html> (last visited January article’s significance and potential long- January 12, 2006). 12, 2006); and M. Bodie, Prawfsblawg, term contribution to the field determine 18. Economicprincipals.com; an indepen- Bepress: The Other Legal Repository, to which of bepress’ publications it is dent weekly, November 30, 2003. The November 17, 2005, at (last visited week46/index.html> (last visited Janu- Press: The New Standard in Scholarly January 12, 2006). ary 12, 2006). Publishing; Frequently Asked Questions, 19. For information on the topical journals 22. M. Bodie, Prawfsblawg, Bepress: The at see details under each network. SSRN Other Legal Repository, November 17, (last visited January 13, 2006); or see the Legal Scholarship Network, at www.ssrn.com/lsn/index.html> (last don, CEO of SSRN, at (last visited Janu- journal and an explanation of the rating tion prices see The Berkeley Electronic ary 12, 2006). system. Press: The New Standard in Scholarly 23. Conglomerate: Business, Law, Eco- 16. The Berkeley Electronic Press, About be- Publishing at (last visited January with Jean-Gabriel Bankier, Berkeley com/aboutjournals.html>; The Berkeley 13, 2006). Electronic Press, December 8, 2005, Electronic Press, Digital Commons, at 21. For comments on downloading and at mons.html> (last visited January 12, Ideoblog, at

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