An Empirical Study of Law Journal Copyright Practices

As the spring submission cycle limps to a close and Redyip prepares to go into hibernation, I’d like to take a moment to reflect on the editing process awaiting all of those articles that have been accepted for publication. Every legal scholar is familiar with both the relief of accepting a publication offer and the ensuing agony of the editing process. But I’d like to focus on two particular aspects of the editing process: publication agreements and permissions. Specifically, what rights do law journals expect authors to convey and when do law journals require authors to obtain permission to use elements of copyrighted works?

Legal scholars implicitly (and often explicitly, via creative commons licenses) expect open access to their articles, as shown by their near-universal use of open access repositories like SSRN. And law journals are (typically) published by charitable organizations, which ought to promote open access to legal scholarship. In addition, law journals (typically) publish scholarly works that often comment on and criticize other works. Using an element of a copyrighted work for the purpose of scholarly commentary or criticism is a core fair use, which does not require permission.

And yet, an empirical study that I conducted with the assistance of Christopher J. Ryan, Jr. (Vanderbilt University, Peabody College – Higher Education Law & Policy) and Franklin L. Runge (Faculty Services Librarian, University of Kentucky College of Law) shows that many law journals have adopted copyright policies that are inconsistent with open access publishing and fair use doctrine. Possibly even more unsettling, some law journals even appear not to understand their own copyright policies.

The article is (provisionally) titled An Empirical Study of Law Journal Copyright Practices. Here is the abstract:

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright Best Practices for Law Journals in order to encourage both open-access publishing and fair use.

Incidentally, this article is still in draft form and comments or suggestions are very welcome.

Brian L. Frye