How has the rise in open access legal research impacted publishers and library and information services?

***Caroline Stafford looks at the impact of OA publishing on the legal profession. Caroline is on Twitter @carolinestaff96***

Open access (OA) has been a force for change in the dissemination of scholarly research. However, movement towards this form of publishing has varied between disciplines as, for example, research concerning law is somewhat behind the natural and social sciences (Severin, Egger, Eve, and Hürlimann, 2018). OA resources can be defined as “digital, online, free of charge, and free of most copyright and licensing restrictions” (Suber, 2012, p. 4). They can be published as gold or green. The former is funded by an article processing charge (APC) and allows for immediate publication, popularly in journals, and the latter becomes available after an embargo period, regularly through repositories, with no cost to the author or reader (Springer Nature, 2021). This essay will examine how the rise in OA legal research has impacted publishers and library and information services. To understand this change, the evolution of OA in general and within the legal sector needs to be understood. It is then important to analyse issues with the traditional dissemination of legal research and how a move towards OA can have major benefits. Further, key developments towards an OA future have been made which will demonstrate how publishers and library and information services are being impacted by this shift.

The evolution of OA for legal research
Technological developments over the past three decades have revolutionised the publishing sector, including that of legal scholarship. Although the legal sector has been slightly behind other disciplines in its uptake of OA, according to Gordon (2012b) “to think it [OA] would not affect legal scholarship would be arrogant, foolish or maybe both”.
The 1990s marked a significant moment for scholarly communication as the transition from individual computers to a global network began (Suber, 2012, p. 1). The OA movement started to gain momentum due to frustrations regarding the slow dissemination of information over the internet and extortionate journal costs (Carroll, 2006, p. 748). This triggered a shift within the publishing industry as research was able to be shared at a faster rate and consequently readership began to rise (Gordon, 2012a, p. 199). From 2002 to 2003 three conferences were held in Budapest, Bethesda, and Berlin respectively which officially defined OA. Suber (2012, pp. 7-8) summarised the definition as followed: to “make research literature available online without price barriers and without most permission barriers”. This new, online environment was therefore vital in advancing the dissemination of research and has had, and continues to have, profound effects on both the publishing industry and library and information services.
Within legal scholarship the law review is the most popular format for publishing research. Law reviews aim to discuss and analyse legal developments and recommend sources to readers that may be of interest to their own research (Danner, 2012, p. 67). They are also notorious for their extensive footnotes and references, which often number in the hundreds (Gordon, 2012b). Legal scholarship influences many professionals within the legal sector, from judges to scholars, and even the public. The development of the internet and subsequent rise of OA publications has allowed the speed in which research takes place to increase. This is because links have been added to many law review’s ample footnotes, meaning that readers no longer have to trawl through multiple print resources to fulfil their information need (ibid). In 1992, the Cornell Legal Information Institute was founded, offering free, online access to a variety of legal scholarship (Glassmeyer and Smith, 2014, p. 182). The number of influential legal information institutes (LIIs) began to expand over the coming decades. This included Worldliii, for example, which is an extremely popular LII that publishes international legal content (Greenleaf, Chung, and Mowbray, 2007). The formalisation of the OA movement for legal scholarship was marked by the signing of the Declaration of the Free Access to Law in 2002. This represented the desire for an increase in OA material within the legal sector, as a minority of institutions and governments allowed free access to published scholarship (Danner, 2012, p. 66). In 2008, a further pledge of support for the movement was issued as part of the Durham Statement on Open Access to Legal Scholarship (ibid, p. 70). These developments clearly demonstrate the influence that technological developments have had on the ideology behind the development of legal research dissemination.

Issues with traditional dissemination of legal research
As OA publications began to grow in the 1990s, increasing amounts of research and literature became accessible to those regularly restricted from access. However, the legal discipline has been slower in this transition in comparison to other sectors, such as STEM. Prominent issues with the traditional dissemination of legal research have therefore persisted and, in some cases, increased (Donovan and Watson, 2011, p. 563). As publishers and library and information services have become accustomed to the high prices and inaccessibility of legal research, an increase in OA will undoubtedly alter both industries and their operations.

A key issue with the traditional dissemination of legal research is the ever-increasing price of publications and the monopoly held by legal publishers. As with many disciplines, the cost of legal journals has skyrocketed over the past decades however library budgets have not increased alongside them. According to Donovan and Watson (ibid, p. 555) legal scholars have historically been unaware of the exorbitant price of publications and assume that they will always have access to vital databases. Increased use of OA, even for a fraction of publications, would bring huge relief to library budgets. These ever-increasing prices are largely due to the lack of competition amongst legal publishers, such as Westlaw and LexisNexis, who can effectively charge what they want (Poulin, 2012, p. 166). An increase in OA publishing would ensure access was not limited to those able to afford it. This is a specific worry concerning legal research as legal issues effect everyone (Danner, 2012, p. 68). However, an increased transition to OA will have a profound effect on publishers, many of which are concerned about losing profits (Carroll, 2006, p. 755). Despite this, evidence shows that when a portion of journals move to OA the profits of toll-access journals do not necessarily reduce (Suber, 2012, p. 152). Although this provides reassurance for publishers, library and information providers will need to adapt their services. Gordon (2012a, p. 201) predicts that budgetary responsibilities will decrease, with access and management of resources becoming more important tasks. Increasing costs and the domination of a small group of publishers only works to reduce access to legal research. Although OA may shift the services of library and information providers, publishers should worry less about losing profits and more about improving access to information.

Evidently the traditional dissemination of legal research is exclusive to those who can afford access, with limited options available for groups such as the global south, the general public, and charitable organisations. Without an increase in OA a large percentage of the world’s population will be unable to utilise the benefits of legal research (Donovan and Watson, 2011, p. 554). Ethically, it is important that those without funds can access this information as legal developments effect all individuals. Due to this, Danner (2012, p. 68) emphasises that legal scholars have a responsibility to publish their work through OA. An increase in the number of OA publications, although a positive for readers, will have an impact on the role of librarians and information providers. As more material becomes available as OA, librarians will no longer need to spend large periods of time negotiating licenses (Anglada, 2020). Instead, the management of resources poses a key challenge. For example, publishers need to ensure that each piece of research is tagged with extensive metadata to aid retrieval and organisation (Carroll, 2006, p. 757). This will improve the speed in which library and information providers, as well as users, retrieve information. Moreover, repositories are an excellent way for these global users to easily publish and access legal research. However, this has major implications for the publishing industry. If research is increasingly published directly by scholars, traditional legal publishers will be bypassed. Suber (2012, p. 155) assesses this concern that green OA will decrease the level of traditional publishing. He ultimately determines that the rise in popularity of OA will inspire vendors to move away from toll-access publishing to gold OA. This will attract researchers that want their work to be peer-reviewed, a key marker of prestige in the academic community. Furthermore, increased access to legal research will trigger an increase in the publication of research. With wider access to resources, users can build upon published research to make advances in legal scholarship (Donovan and Watson, 2011, p. 559). OA can therefore have a positive impact on publishers, who will be required to disseminate larger quantities of research. Overall, increasing the accessibility of legal scholarship is a moral necessity and can contribute to an increased output of research. Publishers can take advantage of this shift by continuing to offer high quality peer-review journals, which remain a popular resource for academics. Opening up access may therefore benefit those that at first glance look to lose out.

Developments in the dissemination of legal research
Although OA legal research is slightly behind other disciplines in its development, important progress has been made. This has been instrumental in improving global access to information and will play a major role in influencing the future dissemination of legal research.

OA has remarkably increased the readership of journal articles and ensures that research is disseminated more widely than traditional publishing. Multiple studies into legal publications support arguments that OA material, especially journals, receive more citations than non-OA work. This is known as article level metrics and is a popular way of ascertaining which piece of research to read within the abundance of OA (Gordon, 2012b). Donovan and Watson (2011) investigated this phenomenon to see if it was replicated for legal scholarship. After comparing three journals over an 18-year period, they found that OA articles received 58% more citations than their non-OA counterparts (ibid, p. 570). This was supported by a study in 2013 that demonstrated the impact of OA on older publications which showed that 36% of OA citations were for articles over 10 years old (Verstak et al., 2014, p. 2). Furthermore, Donovan, Watson and Osborne (2015) examined 30 OA law reviews and found a 53% citation advantage. These results demonstrate the tremendous benefits of publishing legal scholarship through OA rather than traditional toll-access publishing. However, the increased use of OA research has huge implications for publishers and library and information services alike. An increase in OA resources can cause information overload in users who feel overwhelmed with the sheer abundance of resources available to them. To overcome this problem libraries can implement search engines that specialise in seeking out OA resources (Lewis, 2018, p. 59). This helps users weed non-OA work which they cannot access, and therefore streamline library and information services. The citation advantage may also influence traditional legal publishers to increase OA provisions because it, as previously stated, will not negatively affect their profits yet improve the circulation of their publications. Specifically, Suber (2012, pp. 150-152) examined the take up of OA within physics and found “countervailing evidence” proving that converting scholarship to OA does not cause the cancellation of paid subscriptions. This means that the dominant legal publishers, such as LexisNexis and Westlaw, would not lose out on profits. As OA material receives more citations, it may also be the case that non-OA work acquires a higher readership as users are made aware of toll-access content through the publisher. Authors of legal scholarship must therefore view the OA movement positively as both their reading lists, and readers, will inevitably increase (Donovan and Watson, 2011, p. 555). Although it may force publishers to change aspects of their business models, the outcome can only be a positive one if dissemination of scholarly work increases.

LIIs and the Free Access to Law Movement stand for the dissemination of free and open legal research. These organisations are having a major effect on both publishers and library and information services. LIIs provide legal research that is “independent of government, and provides free access on a non-profit basis to multiple sources of essential legal information” (Greenleaf, Chung and Mowbray, 2007, p. 5). The first of these was founded in 1992 at Cornell University, with more institutions following suit. By 2002 a group of LIIs joined together and began the Free Access to Law Movement of which there are now over 60 members (Free Access to Law Movement, 2021). The organisation acknowledges that legal research is the property of all people, access should be free, and other platforms should be allowed to publish these resources (ibid). It is important to note that although LIIs provide a variety of free resources, they will never be able to offer all the information necessary to carry out extensive research (Greenleaf, Chung and Mowbray, 2007, p 14). Although their current pricing models are unsustainable, publishers that still own toll-access information will continue to play a vital role in the dissemination of this legal scholarship. Fouzder (2019) explains that many users “obsess about price” and a reduction in access costs would minimise restrictions to key legal research material. Further, the increase in LIIs creates a new opportunity for library and information services as training users to navigate these platforms, which for many will be an unfamiliar resource, becomes a necessity (Poulin, 2004). Overall, LIIs are an important OA platform within the legal information sector. Publishers and library and information services alike must therefore adapt to these new platforms in which information is accessed with greater ease.

The use of repositories for publishing has risen in popularity due to the lack of costs for both the author and reader. According to Brown (2019, p. 561), institutional repositories have been extremely useful in increasing the dissemination of law reviews. In 2011, there were 30 institutional repositories at academic law libraries in the US, and by 2016 this had increased to 80 of the top 100 law schools (ibid). In 2011, Duke Law School published their journal archive on an institutional repository which has been immensely successful in allowing swathes of material to be accessed by a global audience (Danner, 2012, p. 72). Alternatively, disciplinary repositories are another option for the publication of legal research. The Social Science Research Network (SSRN) and Berkeley Electronic Press (BePress) both provide access to key legal research through their legal scholarship networks (ibid, p. 71). Moreover, multi-disciplinary repositories (MDIRs) are another option which can be especially useful for legal scholarship as its research tends to blur the lines, and can be classified into multiple disciplines (Gordon, 2012b). For library and information services it is important that users are offered information on the range of repositories and their resources which, like LIIs, may be unfamiliar. It is therefore vital that librarians are themselves offered training for both navigational and digital literacy purposes so they can provide users with the best service possible (Rodriguez, 2015, p. 404). For publishers, repositories pose a threat to their longevity and profitability due to their lack of costs. However, reputation is still an important factor for many academics in choosing where to publish research. This aspect of dissemination will ensure that publishers are able to continue publishing through traditional toll-access or gold OA, for which authors pay an APC to be published (Creaser et al., 2010, p. 158). However, there is fear that traditional publishers are beginning to influence the direction of the movement by purchasing OA publications and repositories. For example, in 2017 Elsevier announced its acquisition of BePress, which has led many OA advocates to suggest that this was done to protect their business interests (Scholastica, 2017). The changing landscape of legal research dissemination ushers in uncertain futures for both publishers and library and information services, but with modifications to their roles and business models they can still be a major force within the industry.

Overall, the rise of OA legal research is having a profound impact on both publishers and library and information services. This change comes with huge benefits for libraries which have had budgets cut dramatically in comparison to the increase in access fees. The responsibilities of library and information providers will primarily feel the impact of this shift. Time spent working on budgetary issues and negotiating licenses will reduce, with their focus moving towards managing OA resources and providing training for users. In comparison, publishers may not view the shift towards OA as positively, as their main concerns are profits and subscription numbers. However, evidence shows that an increase in OA publications won’t necessarily be of negative consequence to publishers in relation to these issues. A shift towards gold OA will allow them to continue profiting from APCs as well as receiving increased reader numbers due to the removal of access fees. Coupled with the continued desire for peer-review within the academic community, legal publishers will still be necessary for the dissemination of legal research.

To conclude, OA legal research has a way to go in breaking free from the monopoly driven publishing industry. However, key developments have demonstrated that a rise in OA resources can have major benefits. By adjusting their business models and responsibilities, publishers and library and information services will be able to expand readership whilst remaining imperative to the dissemination of legal research.

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About Joseph Dunne-Howrie

I am artist in residence in the MA/MSc Library and Information Science department at City, University of London and module year coordinator for MA/MFA Performative Writing/Vade Mecum at Rose Bruford College of Theatre and Performance.My research interests include intermediality, live performance in digital culture, participatory and immersive theatre, performance documentation, archives, and performative writing.
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