Law

The field of legal science was comparatively late in recognising the relevance of open access for its own scientific practice. Admittedly, since the turn of the century, legal scholars have addressed the legal parameters of open access (Spindler, 2006) and have examined in dissertations the significance of copyright’s exclusionary power for the supply of scientific information (Krujatz, 2012). With RuZ, which was established in 2020, there is even a scholarly journal specifically dedicated to the legal issues surrounding access to cultural heritage. However, when it comes to their own publishing practices, many legal scholars react to the topic of open access with a questioning look or a shrug of the shoulders. Others even reject it outright, which can lead to years of legal disputes. There are a variety of reasons for this; at least eight theses against open access in law (which have since been called into question) are frequently advanced (Hamann & Hürlimann, 2019).

Open access is increasingly mandated by funders of legal science research and by universities ("top down"). In recent years, however, an informal network of legal scholars and librarians in the German-speaking area has been working to promote open access in law ("bottom up"). Entitled jurOA-Netzwerk, it operates a mailing list that reports news on open access in law. Since 2016, it has organised regular events that are documented on www.jurOA.de. By contrast, the established professional societies in the field of law have to date been reluctant to participate in the open access debate.

In its Criteria for the Assessment of Scholarly Performance in the Field of Private Law, the German Association of Teachers of Private Law (Zivilrechtslehrervereinigung) defines "successful reception" as a performance criterion and designates the publication venue as an indicator for scientific quality. However, this does not appear to be linked to any statements regarding the accessibility or reusability of publications. In the guidelines for good scientific practice issued by the German Association of Teachers of Private Law and the German Association of Teachers of Public Law (Vereinigung der deutschen Staatsrechtsrechtslehrer), there is no mention of open access. The Swiss Association of Jurists (Schweizerischer Juristenverein) was pressured by the Swiss Academy of Humanities and Social Sciences guidelines for granting financial contributions to publications to take small steps in the direction of open access. However, as of May 2021, the free access to all papers delivered since 1862 at the Congress of the Swiss Association of Jurists (Schweizerischer Juristentag), which was announced in 2018, had still not been implemented.

The Directory of Open Access Books (DOAB) and the database Open Access Publishing in European Networks (OAPEN) list law books in different "subject classifications" that cannot be searched collectively. As of December 2021, they included:

• law (777 titles in DOAB, 763 in OAPEN)
• jurisprudence (148 titles in DOAB, 141 in OAPEN)
• legal (110 titles in DOAB, 108 in OAPEN)
• courts (7 titles in DOAB, 9 in OAPEN)

Thus, across these categories, both databases listed around 900 law books (multiple counts and overlooked categories cannot be ruled out). Because of the disparate categorisation, a more exact breakdown by publisher, year of publication, etc. would require a more in-depth empirical study.

The pioneers of open access monographs in law were not the established scholarly publishers but rather private individuals and societal initiatives. They include, for example the Mannheim solicitor Thomas Fuchs with his essays and volumes published on DeLegibus.com (since 1998); the online portal jurawelt.com with the law series TENEA (115 monographs 2002–2008); and Mark Schweizer, who self-published his dissertation online in 2005 (he later went on to become president of the Swiss Federal Patent Court). The first dedicated open access law publishers – at least in the German-speaking area – were probably Carl Grossmann Verlag in Germany (since 2016) and sui generis Verlag in Switzerland (since 2019).

After the open access model was also discovered by established publishing houses, the university press Universitätsverlag Göttingen was one of the earliest and most committed publishers with a law programme. Another was Nomos-Verlag in Baden-Baden: as of 19 May 2021, the Nomos eLibrary listed 201 open access books. More conservative publishers also have open access monographs in their portfolios. They include, for example, Mohr Siebeck with 35 titles and Duncker & Humblot with 8 titles (as of December 2021).