Questions and Criticisms

Quality control aspect of journals?

The effect on journals, and its implication for scholarship, came up frequently in response to the FAS motion. This view was expressed, among other places, in a New York Times article:

"The publishing industry, as well as some scholarly groups, have opposed some forms of open access, contending that free distribution of scholarly articles would ultimately eat away at journals’ value and wreck the existing business model. Such a development would in turn damage the quality of research, they argue, by allowing articles that have not gone through a rigorous process of peer review to be broadcast on the Internet as easily as a video clip of Britney Spears’s latest hairdo. It would also cut into subsidies that some journals provide for educational training and professional meetings, they say."

Whatever weight this argument carries in the FAS context, it carries little relevance for the Law School context, because almost all law journals have their articles available for free already (see, e.g., the Harvard Law Review). Moreover, the vast majority of law reviews are not peer reviewed, but are instead edited by students. Therefore this criticism - and others predicated on the idea that open access will kill the journals, and do away with the benefits they provide - does not apply in the Law School context.

Will Harvard's Database credit whatever journal originally published the article?

It is unclear exactly what structure the Harvard database will have and what metadata if any will be available in it. However, there are many good reasons for wanting a metadata field (and perhaps having the article in the database state what, if any journal the article was published in). Such information is both beneficial for readers of the article who can use that information to help evaluate the validity and importance of the work in question. Furthermore, this also serves to give appropriate credit to the journals that do a substantial amount of work in editing and polishing the final version of articles.

What is the effect on opportunities for up-and-coming scholars?

This was a point of contention regarding the FAS motion. As one Yale art history graduate student expressed in the Yale Daily News, "It would be disappointing for those of us just beginning our academic careers to lose the chance to have our early work published and peer-edited by senior scholars."

Harvard History Professor Robert Darnton argued in the Crimson that the Open Access proposal would help young scholars:

"The spiraling cost of journals has inflicted severe damage on research libraries, creating a ripple effect: in order to purchase the journals, libraries have had to reduce their acquisitions of monographs; the reduced demand among libraries for monographs has forced university presses to cut back on the publication of them; and the near impossibility of publishing their dissertations has jeopardized the careers of a whole generation of scholars in many fields."

Like the other FAS-related questions above, these issues presume an economic model of high-cost peer-review journals, which is not the case for law journals. However, there are still potential effects for legal scholars.

On one hand, those professors who are subject to such provisions by their university might have a harder time being published. If the opt-out provisions are seen as too cumbersome, they might discourage a journal from selecting their article in favor of one from a professor at a different University. This effect may be seen in law journals more often than it is at those the FAS policy concerned; the student-run publications may have fewer resources and more time constraints than those that are professionally published.

On the other hand, this could be a great benefit to scholars who are not yet associated with a University, or who are at a school with fewer resources. Their limited access to journals would be mitigated by this policy, and they would have an ability to research prior scholarship that better rivals their peers. When new articles stand "on the shoulders of giants" and build on prior work, this could be a great boon not only to these scholars, but to scholarship in general.

Will this jeopardize peer review?

One of the major concerns of the NIH regulation was that by decreasing journal profit, an open-access policy would negatively impact the profits of peer-reviewed journals, and thus eliminate the essential source of funding that supports the public good of the peer review process. This is less of a concern in the legal context, since most notable journals are affiliated with universities, and are student-run. Therefore, the journals have less overhead than those in other fields, and depend less on profit for their continued existence.

Furthermore, several of the top journals are situated at Harvard. Since Harvard Law School funds the journals, the school itself will bear the cost of any lost subscription profit. One can assume that the law school will agree to this as part of its overall drive to open access. Therefore, the Harvard journals are in a good position to lead the trend toward acceptance of these new rules.

Will this jeopardize more obscure journals?

This was another concern related to the FAS motion. Harvard Profressor J. Lorand Matory explained to the New York Times that "he sympathized with the goal of bringing down the sometimes exorbitant price of scientific periodicals, but worried that a result would be to eliminate a whole range of less popular journals that are subsidized by more profitable ones."

Again, this worry is not applicable to the law school context, because the premier journals do not depend on restricting access to their articles to make money.

If anything, the publication on the University's website of articles published through lesser-known journals might actually help them by increasing awareness of that journal. This policy could bring attention to those journals when the work is posted on the University website and available through public databases; this would even open the door for journals not included in paid search sites such as Lexis. In addition, the granting of permission to include works in course packets with few transaction costs would make it likely that these more obscure works are presented to students, who may be looking to publish while in school, or may be tomorrow's scholars.

[QUESTION - DO WE KNOW WHETHER UNIVERSITY WILL CREDIT JOURNALS OF PUBLICATION WHEN IT PUBLISHES IN OPEN-ACCESS REPOSITORY?]

What sort of problems would the opt-out system entail?

One difficulty would be presented if a majority of journals require professors to seek exemptions in order to release all copyright to the journals themselves. In this situation, the opt-out policy could effectively undermine the open access proposal by resulting in few articles being released under the University copyright scheme. There could also be a "tipping point" effect whereby journals realizing that most of their peers are opting out of the amended provisions follow suit. However, the converse may also be true; if a majority of journals allow the change, it might encourage more to follow suit.

In the law school context, this is less of a concern. The fact that most journals are at universities reduces the chance that opt-outs will be the norm, and, as mentioned above, the journals here at HLS will be in a position to lead the charge toward accepting the new terms.

If most law journals do open access anyway, what does this motion add?

Most of the responses to the criticisms above are based on the argument that law journals are already largely open-access. If that is the case, what does this motion add? Here are a few possible responses.

1. Speed: While most journals publish their contents online, often there is a time-lag, perhaps of several months. If the University receives the articles upon completion, the scholarship can get out there much more quickly.

2. Ease of Access: Having all the Harvard faculty-authored articles in a single searchable database, instead of spread across countless websites, would make it easier and more convenient for readers. In addition, inclusion of these articles in Google Scholar and the like would increase search functionality overall, especially if other schools follow suit. Eventually, a single searchable database of all scholarly articles could be available to all.

BUT WITH WESTLAW/LEXIS, DOES IT ADD MUCH?

Insofar as all legal scholars have free access to these services (as do most law students) this will not add much. However, paid subscriptions to these services are costly; this would open up searching for those who do not have free access. For example, budding scholars who have graduated law school and have not yet been awarded a teaching position would be in a better position to conduct such research for free, and would level the playing field for this category of aspiring professors. (Such as those working at non-profits or firms who do not want to or cannot charge search fees to their employer, post-JDs working on PhDs, etc.)

3. Being a Leader in Open Access: Harvard Law School is uniquely positioned to become a leader in open access to scholarship. When Harvard makes a statement like this, it attracts attention - Library Journal called the FAS Motion "A Shot Heard 'Round the Academic World," and asked "After Harvard, the Open Access Deluge?" This is Harvard Law School's opportunity to throw its considerable weight behind the idea of open access for the benefit of scholars everywhere.

Why is this license irrevocable?

[I don't have a good answer to this question but I think we need one. Kparker 15:09, 6 March 2008 (EST)]

Here is a hypothetical situation in which this could be an issue: Professor Z writes an article and does not opt out of the licensing agreement with HLS. Several years later, a textbook publisher approaches Professor Z and asks permission to use the article in a new edition of the book. Because the author's license with HLS is non-exclusive, he can make this arrangement. However, the publisher will not pay Professor Z for the use of his article if it is freely accessible from the HLS database. Professor Z would like to revoke the license but finds that, while opting out of the license in the first place would have been automatic, revoking it at this point is impossible. A miffed Professor Z resolves to always opt out of the agreement from now on, and advises his colleagues to do the same.

Is it fair to require professors to turn over their work to the University?

The NIH has adopted policies that would require all scholars to make public results of NIH-funded research. One line of thinking is that since the government has paid for the research, they are entitled to guarantee a public benefit. In the law school context, the school arguable "funds" the research by providing them with employment; they can access previous scholarship and devote time to publishing because of their positions. So an analogy would hold that it is "fair" to allow the Universities this limited degree of control over works their funds enabled.

A counter-point to this is that law schools "fund" such research because it benefits them; the publication by an affiliated professor brings prestige and notability to the school itself, therefore assisting them in drawing higher quality students (many of whom will become donors who help fund the school). Under this perspective, the university is getting the value of such research without obtaining IP rights over the direct work product.

It is also worth noting that the NIH requirement would build a lag time into its requirements, allowing researchers to capture the value of their work for a year after publication, and therefore retain all the added value of prompt publication. For fields in which timeliness is essential, this would be a significant amount. Transferring this value to journals gives them more leverage in those agreements, and undercuts the argument that journals will lose money and decrease the return from the costly peer review processes.

Why not make it voluntary?

Before the NIH policy was made mandatory, it had about 4% compliance; mandatory policies are more effective. In addition, this would require any journal refusing to accept the new terms to forgo publication by any Harvard Law professor, not just those individuals here who choose to implement the policy. Therefore, a mandatory policy makes it far less likely that journals will object.