Durham Statement on Open Access to Legal Scholarship - Frequently Asked Questions

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What is the purpose of the Durham Statement?

The Statement is intended to provoke discussion about the publication of legal scholarship at US law schools and, hopefully, to promote thoughtful consideration of the issues it raises at individual law schools. The Statement is the product of a group of US academic law library directors. We realize that not everyone with an interest in legal scholarship will agree with us.

What is "open access?"

The drafters of the Statement are in general agreement with the definition of Open Access in the 2002 Budapest Open Access Initiative, which calls for:

free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself.

However, we also bear in mind the caveat of John Willinsky (author of The Access Principle: The Case for Open Access to Research and Scholarship (2006) that: "Only by working with a loosely defined approach to open access archiving and publishing can one begin to capture the variety of and variation in the means that are now being used to increase access to scholarship and research."

Do open access journals in other disciplines reach new audiences of readers?

Many advocates of open access publishing believe that it reaches new audiences, particularly researchers in the South where access to both print journals and commercial databases is much more limited than in North America and western Europe.

Are there "stable, open, and digital" formats available now for preserving law journals?

We recognize that there is work to be done to determine what counts as agreed-upon "stable, open, and digital" formats before we all rush to implement it. The Statement is aspirational, in the sense that we hope it will spur research, discussion, and eventual agreement on standards for "stable, open, and digital" formats.

I am trying to locate a current list of law schools that have adopted open access. Do you know where I may be able to locate such a list?

The Directory of Open Access Journals is probably the most authoritative international source for a list open access journals in law and other disciplines. See also the list of law journals that have adopted the principles of the Science Commons Open Access Law Project.

Although few student-edited law journals are listed on these sites, new issues of a growing number of US law journals are freely available on law school web sites.

In February 2021, directors of the signatory law libraries formed a new Durham Statement Review Task Force in order to explore the current status of the Statement’s adoption, examine barriers to adoption, and recommend best practices going forward, including potential revisions to the statement language. The group was comprised of members from Duke University (Jennifer L. Behrens, Associate Director for Administration & Scholarship), the University of Chicago (Todd Ito, Head of Instruction and Outreach), Stanford University (Grace Lo, Reference Librarian), and Yale University (Julian Aiken, Assistant Director for Access and Faculty Services). The Final Report of the Durham Statement Review Task Force was completed in August 2021.

Are there open access publishing systems available that law school journal editors could employ?

Among other sources, the Association of Research Libraries Scholarly Publishing & Academic Resources Coalition (SPARC) lists resources for open access journal publishing. An example is the Open Journal Systems (OJS), a journal management and publishing system developed by the Public Knowledge Project.

In the short history of computing, there has been no truly stable digital format for legal scholarship or anything else. For a permanent record, there still is no competitor to paper. And, I want to see my work published in a printed volume; online publication just isn't the same.

Open access journal articles can be printed out (whether informally or through a more formal print-on-demand facility) and shared in much the fashion they have been in the past -- and will be much more available, at no cost, for those with any form of net access.

It will also be sensible for all journals (or the libraries at their schools) to print them out as back-up, archival copies, to be kept in multiple locations in case of a terrible failure in the digital archiving systems, even if a journal moves away from "print runs" in the way we now know them.

I would like to see the evidence of the cost savings referred to in the Durham statement. I am well aware, personally, of the cost of keeping paper collection, but I haven't seen the true cost of the proposed all-digital collection listed out anywhere, including long term storage.

Each law school has its own approach to publishing its journals. Some journals, usually those with substantial incomes, are largely independent of their host institutions; most are dependent in some extent on support from their law school in addition to revenues from subscriptions, royalties and other sources. Each, however, does bear costs for publishing and mailing print issues, which would be regained if print were dropped. Comparisons of costs and income will need to be examined in each law school.

However, although potential cost savings for law schools and their libraries are an important factor in open access, they are not the only reason for law schools to make sure that the scholarship is made as widely available as possible.

Should you have involved others, including journal editors, in the preparation of the Statement?

The Statement was written by law librarians and is intended to begin a conversation within legal education. Although they are primarily vehicles for scholarly communication and discourse, law journals and other scholarly publications affect many different constituencies. In legal education, student-edited journals serve a pedagogical function that most institutions value. While not everyone will agree with us, everyone in the scholarly community (authors, readers, publishers, librarians, etc.) is encouraged to collaborate in designing the solution.

Should the law school web page be archiving material? Isn’t that a current awareness tool that shouldn’t be used to store old stuff -- like back files in e-form of law reviews, podcasts, etc.

The web site is probably not the best place to archive the scholarship produced at a law school. An important part of the Statement is its raising the issue of what responsibility law schools have to ensure the preservation of the scholarship they produce.

Will those journals that are published online only still charge a subscription fee? Eliminating printing and mailing does cut cost significantly, but there are still costs to producing a journal.

Open access publishing calls for scholarship to be freely available on the Internet for reading, copying, and downloading. Many of the costs of publishing a journal remain under open access publishing models. For most law schools, the question will be whether the revenue their journals receive from print publication outweighs the costs of printing, mailing, and managing print issues.

What will be the effect of open access publishing on law journals’ income from commercial databases?

It can be argued that open access scholarship is aimed at different audiences than law firms and law schools, which are probably the primary sources for journals royalty revenue. Open access publishing makes scholarship accessible to domestic and international researchers who cannot afford the costs of commercial databases. At least in the U.S. and western Europe, where law journals are packaged in electronic databases with other resources regularly relied upon by practicing attorneys and academic lawyers, open access to legal scholarship should have little impact on royalty income. In a time of financial hardship, however, users may well look more frequently to freely available sources.

I am wondering why law reviews are the target in this initiative when they are a relatively low cost item. Costs of physical storage aside, they are an inexpensive part of law library collections. It would be a better world if the high end items on our shelves were more digitized and affordable.

Unlike other disciplines, we in legal education have control over our scholarly journals, which makes it possible for us to take the lead in promoting open access to legal scholarship both in our field and as an example for others. It seems a bit strange to be in a situation where the schools publish journals, many of which lose money on printing and mailing costs, then expect libraries to subscribe to them at a time when deans are asking libraries to cut back on expenditures and really more electronic formats.

What next steps should we be taking in our law schools?

The drafters of the Durham Statement on Open Access to Legal Scholarship believed that it is time for each law school to examine its program for print journal publication of journals, gather and analyze data about costs and income, and carefully consider the benefits of open access publishing for raising the profile of the law school’s published scholarship and making it available to new audiences world-wide. Those interested in pursuing the questions at their schools should raise and discuss them with journal editors, deans, librarians, faculty members, and students.