Law Review Best IP Practices

logo.gifSome time ago, Professor Larry Lessig posted this attack on the Minnesota Law Review’s then-extant copyright agreement. After bemoaning the practice of journals imposing severe restrictions on academic use, he threw down a gauntlet:

I will not agree to publish in any academic journal that does not permit me the freedoms of at least a Creative Commons Attribution-Noncommercial license.

While some speculated about Lessig’s motives, it is my sense that his blog post contributed to a movement. Many journals, including the MLR, have changed their copyright agreements in the past year. As Info/Law recently pointed out,

The journals can always say no, but we have found in research for the Berkman Center’s “Digital Learning” white paper that many journals are willing to allow for some forms of open distribution if an author pushes them just a little. Science Commons has found the same, and notes that “We are aware of no instance in which a publisher has refused to publish an article where the author sought to retain some non-exclusive rights to the article.”

As Solove pointed out here in July, there is a new trend afoot : authors demanding that reviews give up their copyright altogether. I don’t think this is the same as the open-access movement, but instead (possibly) a push by authors to retain exclusive rights so that they can take advantage of new methods of distributing legal scholarship.

Assuming that you are the editor-in-chief of a law journal, what is the current best practice with respect to your license, and why? ( Looking at Froomkin’s wiki on copyright practices, I don’t have a sense that a market standard has emerged.) Further, should licenses be negotiable? Although negotiability is generally desirable, it obviously permits high-profile authors to eat even more of the pie.

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2 Responses

  1. Frank says:

    Peter Suber’s blog suggests that perhaps the best sistuation is for no one to own academic works….that we are best served by a system that allows them to be as freely reproduced as possible.

    I know of an author (Lydia Loren) who has done very interesting work on the idea of “abandoning copyright,” but I will wait to cite the paper I’ve seen this in b/c it says “please check with Author for final version before citing.”

  2. Frank says:

    PS: there is a certain tension in my comment above; I both suggest that abandonment of copyright would be best in many academic fields, and respect someone’s request not merely to not quote a work, but not to cite it.

    But I think whatever rights at play here are more in the nature of privacy than property rights. And I hope that eventually, people will be able to release versions of papers and not have to worry about warning others not to cite early versions. This is rather like Tom Cross’s idea of according different degrees of “venerability” to texts by color–a first draft could be read, later ones yellow, green, and finally black.