Abstract: The concept of open access to legal knowledge is at the surface a very appealing one. A citizenry that is well informed about the law may be more likely to comply with legal dictates and proscriptions, or at a minimum, will be aware of the consequences for not doing so. What is less apparent, however, is whether an open access approach to legal knowledge is realistically attainable without fundamental changes to the copyright laws that would recalibrate the power balance between content owners and citizens desiring access to interpretive legal resources. A truly useful application of open access principles would require adoption of compulsory licensing regimes with respect to proprietary legal resources, and significant government subsidies as well. Because affluent individuals today are both more likely to gain access to information and more likely to have the resources to use it, this Article concludes that the open access construct currently does little to actually empower access to legal information in any significant way.
Comment. First, let's distinguish royalty-free legal publications (statutes, judicial opinions, law review articles) from royalty-producing legal publications (indices, treatises, encyclopedias, etc.). The OA movement has always focused on the former, as the low-hanging fruit, even if there are long-term ways to extend it to the latter. It's low-hanging fruit either because it's in the public domain from birth (statutes and opinions) or because the original copyright holders can consent to OA without losing revenue (law review articles). Hence, achieving OA for this category requires no copyright reform. That is, it requires no statutory reform, like compulsory licensing. Moreover, achieving OA for this category would be a significant boon for legal researchers, lawyers and non-lawyers alike. It goes without saying that OA to two categories of literature would be more useful than OA to just one, but that's no objection to the usefulness of achieving OA for the large and primary category that's already within reach.
Posted by
Peter Suber at 12/11/2006 08:52:00 AM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.
I recommend the OA tracking project (OATP) as the best way to stay on top of new OA developments. You can read the OATP feed on a blog-like web page or subscribe to it by RSS, email, or Twitter. You can also help build the feed by tagging new developments you encounter.
