Open Access in 60 Seconds

Video about Open Access. (CC BY 3.0 DE)
Source: Brinken, H., Hauss, J. &  Rücknagel, J. (2021). Open Access in 60 seconds, open-access.network. https://doi.org/10.5446/50832

Open Access in 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.

Open Access journals

As of 19 May 2021, the Directory of Open Access Journals (DOAJ) listed 610 entries under “Law”. However, this figure is deceptive because DOAJ’s subject area classification is not always accurate, and also because many online law journals – both from the German-speaking area (Hamann, 2016: Para. 24) and the United States (Severin et al., 2020: 16) – are not included. Specifically, a study conducted in 2019 found that, as of 1 August of that year, three of the 11 law journals from German-speaking countries indexed in DOAJ were assigned to the wrong subject or geographical area, while a further 39 online law journals were not included at all (Hamann, 2019: 87 Footnote 11, pp. 90 f.). Journals are indexed in DOAJ on application only. The application procedure is very laborious, and many law journals do not meet the strict criteria for inclusion.

Of the law journals from the German-speaking area (DE/AT/CH/LI) that are indexed in DOAJ, only one – the International Journal of Language & Law – is also a member of the Free Journal Network of even more critically curated platinum open access journals. In the case of other journals, membership is often precluded because FJN requires that member journals include a title and abstract in English for each published article. The most established law journals from the German-speaking area that are indexed in DOAJ include:

In addition, a further 40 online law journals from the German-speaking area were in existence as of 1 August 2019. A publicly editable list of these journals, which can be updated and extended by anyone, can be found in the digital Handbuch Open Science. The oldest journals have been published since 1995; the largest wave of startups was observed in the years 2013/14 (see Figure 1).

Whereas an increase in the number of open access law journals can be observed in Germany and Switzerland, and these journals enjoy growing popularity, no open access law journals have been able to establish themselves in the long term in Austria: the two oldest journals have already either ceased publication (Spektrum der Rechtswissenschaft) or publish content only sporadically (the Austrian Law Journal, which published only three contributions between April 2019 und April 2021).

Outside the German-speaking area, the law reviews published by university presses in the United States, which are usually freely available online, constitute a flourishing eco-system of open access scholarly texts. The origins of these law reviews go back a long way – for example, to the popular repository infrastructure of the Berkeley Electronic Press (Bepress). Many of the student-edited journals in this eco-system still do not use any open access licences and can therefore be classified as gratis open access rather than libre open access. As of 19 May 2021, the commercial database 1findr, which is provided by Elsevier and does not differentiate according to licensing conditions, listed 546,000 law articles in freely available scholarly journals.

Financing of Open Access Articles. [german] (CC BY 3.0 DE)
Source: Brinken, H. (2020). Finanzierung von Open-Access-Artikeln, open-access.network. https://doi.org/10.5446/49536

Open Access Books

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 19 May 2021, they included:

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 27 titles and Duncker & Humblot with seven titles (as of 19.5.2021).

Disciplinary Repositories

Disciplinary repositories have played a limited role in legal science to date. The few law repositories in existence include:

  • < int R >²Dok (pronounced “Inter-Zwei-Dok“): The open access law repository of the Specialised Information Service for International and Interdisciplinary Legal Research (Fachinformationsdienst für internationale und interdisziplinäre Rechtsforschung) at the Staatsbibliothek zu Berlin is open to all legal scholars. Besides scholarly publications and research data, it also archives blog posts.
  • SSOAR (Social Science Open Access Repository): The full-text server maintained and operated by GESIS – Leibniz Institute for the Social Sciences serves five “communities”, including Jurisprudence and Administrative Sciences with over 2,000 archived documents.
  • LawArXiv: Established with the intention of creating an open access community for legal scholarship, this offshoot of the arXiv eco-system (which, in addition to arXiv.org, also includes PsyArXiv, SocArXiv, AfriArXiv and others) was closed after accepting 1,390 documents; it is no longer accepting new submissions.

An overview of other law repositories outside the German-speaking area is also provided by the Open Directory of Open Access Repositories (OpenDOAR) in the subject area “Law and Politics”.

Source: Brehm, E. (2021). Zweitveröffentlichungsrecht für Wissenschaftler*innen [german], open-access.network. Brinken, Helene. https://doi.org/10.5446/51789 (CC BY 3.0 DE)

References

Further Reading

Content editors of this page: Dr Daniel Hürlimann (University of Fribourg, Switzerland) and Dr Dr Hanjo Hamann (Max Planck Institute for Research on Collective Goods, Bonn) (Last updated: June 2021)