Student-run law reviews have historically been among the journals most receptive to making scholarship open access. Many law reviews have come to practice open access principles, including making the articles they publish freely available in digital formats and permitting authors to widely distribute their articles on open platforms, such as Social Science Research Network. Law reviews’ willingness to embrace open access combined with fair use copyright laws should facilitate many opportunities for legal scholars to build off of existing research. But, is the way some law reviews are expressing and interpreting their copyright policies limiting the open access and fair use potential of legal scholarship?
Brian L. Frye, Associate Professor at University of Kentucky College of Law is exploring how he believes some law reviews are misinterpreting copyright law and limiting open access and fair use as a result. He wrote a recent article on the topic titled, “An Empirical Study of Law Journal Copyright Practices“ (forthcoming in John Marshall Review of Intellectual Property Law) along with Christopher J. Ryan and Franklin L. Runge. We caught up with Professor Frye to discuss the details of his article as well as his proposal for the creation of a “Code of Copyright Best Practices for Law Journals,” in order to encourage both open-access publishing and fair use. Check it out!
What was your impetus for researching and writing about the topic of law review copyright practices?
BF: I initially decided to do this study based on an experience my friend Irina Manta of Hofstra Law School related in conversation at an intellectual property law workshop. She had accepted an offer from a law review to publish an article that, among other things, discussed litigation related to copyrighted images that were reproduced in the litigation documents. She wanted the article to include the images for the purpose of illustration and discussion, but the journal refused, unless she got permission from the copyright owner. All of the intellectual property professors in attendance recognized that this was an obvious fair use that did not require permission.
Reflecting on Manta’s anecdote, I remembered that I had heard about and personally experienced similar copyright-related issues when publishing, especially relating to ownership of the copyright in the article and the use of copyrighted materials for the purpose of scholarly commentary. And I also realized that my experiences had differed from journal to journal. So I created and circulated an initial survey of law review copyright policies. Later, I asked Christopher J. Ryan, Jr. and Franklin Runge to co-author the article. Ryan is a former law student of mine and a current graduate student at Vanderbilt, with a strong background in empirical work, which I lack. And Runge is a research librarian at University of Kentucky, who is very knowledgeable about open access principles. It was a fruitful collaboration!
BF: I prepared a 23-question survey on Google Forms, intended to identify the different copyright policies adopted by law journals. Several research assistants helped me create a mailing list for as many US-based law journals as we could find, and I circulated the survey.
Ultimately, we sent out the survey 4 times over the course of 8 months (January to August 2015) to 509 of the 785 student-edited U.S. law journals with publicly available contact information. In total, we received 100 responses from 93 unique participants, or an 18% response rate.
In your paper you say you don’t think many law reviews understand the fair use doctrine and the goals of open access publishing - can you explain why that is?
BF: Our survey data suggests that some law reviews do not understand the fair use doctrine because their copyright policies require permission for clear fair uses. In addition, although most don’t do this in actuality, some law reviews indicated in their copyright policies that they require authors to obtain permission in order to use elements of a copyrighted work. Specifically, some stated that an author must obtain permission from the copyright owner to quote a sentence from a copyrighted work for the purpose of commentary. No law journal should actually require permission in that circumstance.
We also found that many law reviews have copyright policies that are inconsistent with open access publishing. For example, in the survey, some journals stated that their copyright policy prohibits authors from distributing articles prior to publication. Some journals also stated that they request the assignment of copyright in order to limit the distribution of articles. Anecdotally, I have found that many law journals continue to rely on legacy copyright policies that were adopted during the print era, when needs and expectations of journals and scholars were quite different. Some are happy to update those policies when authors question them. For example, I published a symposium article in the Nova Law Review, and when I pointed out some problems with their copyright policy, they immediately consulted with their general counsel and changed their policy. It’s important that law review editors revisit existing policies and consider if and how they address the expectations of legal scholars, who want to distribute their articles as widely as possible.
In your article you talk about how law reviews are limiting “transformative” uses of original articles - can you explain this and give an example?
BF: Our survey shows that law journals tend to adopt very restrictive fair use policies, and require authors to obtain permission in order to reproduce copyrighted works in their articles for the purpose of scholarly commentary and criticism, even when those uses clearly fall within the scope of the fair use doctrine. This severely limits the ability of authors to effectively comment on and criticize those works, by preventing readers from having a point of reference. Using reproductions of copyrighted works for the purpose of scholarly commentary and criticism is a core fair use, which is uncontroversially permitted.
How have law reviews historically advanced open access to research? In your article you mention the “Durham Statement on Open Access to Legal Scholarship” - can you explain that?
BF: The Durham statement was prepared in 2008 by library directors of 12 law schools at a meeting at Duke Law School in Durham, North Carolina. It stated that open access publishing principles should be applied to the publication of legal scholarship. Specifically, it stated that law schools should stop producing print law journals and should publish all legal scholarship digitally, on an open access platform that will make legal scholarship available to everyone, free of charge. Open access is especially appropriate for legal scholarship, because legal scholars largely operate in an “academic gift economy” in which they produce legal scholarship that they wish to distribute free of charge to as large an audience as possible. Law journals should endeavor to facilitate that goal, and certainly should not frustrate it.
In your article you recommend that law reviews adopt a “Code of Copyright Best Practices for Law Journals” - can you explain what that might look like and why you think it’s needed?
BF: We recommend that law journals develop a code of copyright best practices, along the lines of the codes of best practices developed and encouraged by American University’s Center for Media & Social Impact. In the case of law journals, such a code of best practices should address both copyright ownership and fair use.
Law journals should adopt copyright ownership policies that are consistent with open access principles. Specifically, they should typically ask authors to provide only a perpetual, irrevocable, non-exclusive license to reproduce and distribute the article. They should ask authors to transfer copyright only in order to increase open access to articles. And they should never restrict access to articles via paywalls or in any other way.
Law journals should adopt fair use policies that enable authors to effectively exercise their fair use rights relating to the use of copyrighted works for the purpose of commentary and criticism.
A code of best practices would help editors understand these complicated and often unfamiliar issues. It would establish new norms and expectations among law journals. And it could provide evidence of current norms of legal scholarship in case of a dispute.
BF: Yes, but there is more than one way to skin a cat, and more than one way to facilitate open access. For example, law journals can require that authors provide only the rights that are necessary for the journal to provide open access - a perpetual, irrevocable, non-exclusive license - and leave all other rights to the author. Or they can require assignment of copyright for the purpose of making articles available consistent with open access principles - for example, pursuant to a Creative Commons attribution license. Many different approaches may be acceptable, so long as they are directed at the same goal.