NO ENTRY: Open access to law journals and case law

This post is co-written by Catherine Easton, Abhilash Nair and myself.  Abhilash is a co-editor of the European Journal of Law & Technology, and Catherine is editor of the European Journal of Current Legal Issues.  EJLT and EJCLI are both completely open access (OA0 journals – also known as diamond or platinum journals.

We’ve been concerned for some time about the space occupied by OA journals in Law, and so we’ve co-authored an article entitled ‘”The most audacious and specific plan for knowledge, freedom and a better world”: developing radical pathways to free, open journals’ (quoting Ted Nelson, and his description of Project Xanadu). The article, published in a special BILETA edition of the EJLT, is available here.  No paywalls of course, because both EJLT and EJCLI are completely open access.  Our authors aren’t charged for publication, institutions and libraries are not charged for access, readers anywhere in the world with a computer and an internet connection can read the journal.  No corporate profits going to commercial publishers, no public monies ending up as dividend payments in investors’ pockets.

Some argue, like David Sweeney here, that we’re well on our way to OA.  In the UK REF don’t we all contribute our REF research to OA repositories, thus making our research freely available?  We do comply, as a recent report published by Research England indicates.  But we three editors have to disagree with David that this is making much difference, and the examples he cites of the rebellions elsewhere show the heart of the problem, and the sheer global scale of the corporate take-over of digital research publication.  He cites:

our bolder colleagues in Germany, France and Sweden. Germany’s nationwide negotiation coalition, Projekt DEAL, refused to renew Elsevier’s contract in 2017 and is thought to be saving more than €10 million (£8.7 million) a year in journal subscription fees. Likewise, France’s Le Consortium Couperin has suggested that research institutions are saving millions of euros in subscription costs after refusing to agree a new deal with Springer.

Sweden are the latest to take this route with the Bibsam Consortium choosing not to renew their agreement with Elsevier for the first time in twenty years.

In the UK, the Finch Report doesn’t go nearly far enough, and compliance with REF rules doesn’t really create an OA culture.  We need more rebellions like this: in the UK we too need to stand up to corporate culture.  Everything corporate publishers do is in pursuit of maximising profit, and we need to resist their take-over of the whole research cycle, and its metricisation, a process driven in part by corporate profit.  As Paul said in an earlier post, commenting on the SSRN sell-out to Elsevier,

This is the face of the neoliberalist establishment, and to the shame of the academic community we allow it to flourish in our very midst.  Academics write on the corrosive effects of late capitalism, neoliberalism and then we give those writings over to publishing corporations who grow larger and more powerful on the back of our work.  This is beyond irony.  And while we turn away because we can’t be bothered really, the public purse is fleeced by these corporations, and our students, too, pay the price of ever-steepening costs of textbooks and other resources.  […]  Even worse — Elsevier is using the profits from the vast datasets granted to them at huge and ongoing cost by the academic community to construct tools, aka research intelligence, that will enable research managers to monitor the output and quality of academic research.  So not content with harvesting your work in its journals, Elsevier now provides the tools to institutions, again at considerable cost to the institutions, to assess it and ensure that the metricisation of your work increases substantially, and league tables of research can be ever more narrowly calibrated. Over on the LSE Impact blog Thomas Leeper’s posting states the only conclusion we can come to:

The purchase of SSRN [by Elsevier] is also a vivid reminder that advocates of open science practices need to wrestle with whether the end goal of making science widely and freely available for the world can be achieved with the support of for-profit entities that have a substantial stake in the preservation of traditional closed access publishing.

But in addition to resisting corporate culture we also need to develop our own platforms for our own disciplines.  OA journals, truly OA in their aims and processes, are still very much a minority interest, though growing.  How can we increase their number, retain quality of research, and enhance their connectivity as research products?  The conclusion to our article sets out some ideas on how our legal community can do that.  Ultimately, it’s the community of scholars that determines whether initiatives like EJLT and EJCLI survive and thrive, or go under.

Nor are these issues that affect journal articles only.  They also affect the availability of primary research too.  In his perceptive article on open access to case law Daniel Hoadley analyses the reasons behind gaps in BAILII‘s coverage of cases.  He points to the systemic issues in the production of cases, particularly the problem for BAILII of obtaining transcriptions of extempore judgments, produced by agencies.  He notes:

The main publishers of case law in England and Wales (Thomson Reuters, LexisNexis, Justis and the Incorporated Council of Law Reporting) pay large annual sums to these transcription agencies for an ongoing supply of judgments for reuse. BAILII cannot afford the sums involved and is therefore unable to obtain the same data.

And he goes on to observe:

The current arrangements governing the transcription of extempore judgments run completely counter to the tenets of open access. Moreover, public funds are being spent but no public benefit is ever realised (indeed, the Ministry of Justice ends up paying twice because it also needs to buy licences to the platforms).

The waste of public money, the pay-for-access charges that line corporate shareholder pockets while vital legal information is withheld from open access for private profit – we have similar results in access to case law as in access to journal literature.  This must end, and if academics are to retain credibility as researchers and guardians of justice, the law and legal data we must be in the front line of those demanding that it ends and working to offer alternative solutions.

Catherine Easton, General Editor, EJCLI
Paul Maharg, Senior Consulting Editor, EJLT
Abhilash Nair, Editor-in-Chief, EJLT