Editorial: Copyright, Law Journals and a Romantic View of EJIL

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For at least 20 years I have been conducting guerrilla warfare against legal publishers on the matter of copyright. Whenever I get a copyright form I either ‘forget’ to send it back to the publisher (in more than half the cases no one seems to notice or care) or, if they do insist, I always cross out the critical language concerning my intellectual property (they usually ask you to make them a gift of your copyright) and replace it with a handwritten grant of a non-exclusive licence. I was challenged only once. I informed the publisher of the journal in question (Blackwell) that if they were unhappy they should feel free to drop my piece. That did not happen. The first footnote proudly displayed: ©JHH Weiler.

I remember the moment of change. The publisher in question was Walter De Gruyter, publisher of the multi-volume series Integration through Law, of which I was co-editor and in which I had published a couple of pieces myself. Some years later I wanted to photocopy one of the pieces for my students. University copy-centres in the USA take copyright seriously and requested a release from the publishers. I requested such from De Gruyters, who promptly sent it accompanied by a hefty bill. They owned, it appeared, the copyright on my work and were now re-selling it for a profit. (two years later I would presumably receive a 10% royalty on the fee I had paid….) Res ipsa loquitur.

Consider the raw deal we authors get from most legal publishers, including law journals. Typically you are asked in exchange for publishing your brilliant piece, the result of many months of research, drafting and redrafting, to cede your copyright to the publisher of the journal. Now make no mistake: law journals are a serious source of profit for publishers. The break-even point occurs at a remarkably low subscription rate. Internet publishing has made them even more profitable – as the ratio between paper subscription (with the heavy costs of production, warehousing and delivery) and the cheaper online-only version shifts to the latter. Internet journal publishing has given a considerable boost to another source of publisher income: online access to individual articles. In the past it was rare that a publisher would get a significant second bite at the apple. After all, how many permission requests for republication would come their way after the initial publication of an article in the printed journal? But now, with internet research there is an appreciable market for the one-of-a-kind-download-for-payment, which generates very considerable income for the publisher. You, the author, see none of this. The issue is not the money. It is the restriction of access to our work that rankles.

The prevailing fiction is that you give your copyright in exchange for publication, which does involve costs and which gives you fame and recognition. But that would be like saying that in exchange for exhibiting his or her paintings, an artist must actually give them to the gallery or museum as a gift. By simply allowing the journal to publish your piece, by giving them a licence, you are giving them something of value. People subscribe to the journal because enough authors of quality like yourself allow their work to be published therein. So on what ground should one be asked to give away, for ever, the intellectual property in one’s work?

Now of course the right ‘to exhibit’ your work has to be handled in such a way that the public has an incentive to visit the gallery or buy the book in which the paintings are reproduced. If they could be accessed easily and freely otherwise, the gallery would collapse to the detriment both of the exhibiting painters and the public interest in the development of art.

My gripe with most law journals is that the balance between the legitimate interests of the journal and publisher on the one hand and the author on the other is unacceptably skewed in favour of the former.

There have been some improvements. Some publishers have special provisions for the author to reproduce his or her own work for teaching and similar purposes. I suppose we should thank God for small mercies. Another important development is that it has become more common for publishers to request the author to give them a licence and retain the copyright themselves. But it is worth reading the small print. Here is an example from our very own OUP, publishers of, inter alia, the Journal of Church and State in which I recently published a book review. What I received, I should mention, is quite standard in the industry.

The operative language read, inter alia, as follows:

You hereby grant to the J.M. Dawson Institute of Church-State Studies an exclusive licence for the full period of copyright throughout the world:

 to deposit copies of the Article in online archives maintained by OUP or by third parties authorized by OUP.

 to publish the final version of the Article in the above Journal, and to distribute it and/or to communicate it to the public, either within the Journal, on its own, or with other related material throughout the world, in printed, electronic or any other format or medium whether now known or hereafter devised;

 to make translations and abstracts of the Article and to distribute them to the public;

 to authorize or grant licences to third parties to do any of the above;

You may see the full version of the copyright permission at www.oxfordjournals.org/our_journals/jcs/for_authors/copyright.pdf.

An ‘exclusive licence for the full period of copyright?’, I wrote to OUP asking:

Can you kindly explain to me the difference between the exclusive license you are requesting … for the duration of the copyright, and an outright grant of my copyright to you?

I received no reply. I did receive an automated reminder that they had not received my signed form. So eventually I crossed out all that mumbo jumbo and inserted my habitual ‘non-exclusive licence’ handwritten clause. My piece was published with no comment.

This matter has been of concern to us at EJIL for a long time. The most dramatic and significant innovation was introduced several years ago. EJIL, to my knowledge (I would be happy to be corrected) was the first law journal to have a website and offer its content online at www.ejil.org. We are, again to the best of my knowledge, the only law journal, whose electronic archive is accessible free to the public one year after publication on the same website. Anyone, anywhere, can access the entire EJIL free of charge. We believe that this renders a huge service to the legal community, to our readers and, of course, to our authors. http://ejil.org/archives.php.

For the last 12 months or so I have been re-negotiating our publication agreement with OUP for the next five years. One of the biggest sticking points was the question of copyright – notably copyright in the age of the internet. We asked to revisit the whole question of copyright with a view to reaching an agreement that would equitably balance the interests of our readers, our authors, EJIL as an institution and OUP our present publishers. I told them that we should aim for an agreement that could be used as a model for other similar law journals. I have only praise for the spirit in which OUP conducted the negotiations. I think the results are a marked advance, and in some respects even radical, though only time will tell whether we have reached the Promised Land.

Here are the highlights which will be reflected, starting in 2011, in our new author licence forms. Under the new agreement, the authors retain copyright of their work and grant EJIL and OUP a limited publication licence.We draw a distinction between licence over print and electronic versions of the articles.

In relation to print, we radically shifted the terms of the licence in favour of the author. We request a licence simply to be the first locus of the printed version of the article. It, or a version substantially like it, may not have appeared in print elsewhere before publication in EJIL. Once it has appeared in print in EJIL, the author is free to publish it or allow it to be published in print elsewhere immediately, without the habitual time delays of 12-18 months common in the industry. The only requirement is that its EJIL origin be acknowledged in any subsequent publication.

Digital versions are trickier. To illustrate: during a conversation with a visiting researcher at NYU about some recent articles in EJIL I was shocked to discover that she had no subscription. Whence, I wondered, the intimate knowledge of these articles? They are, she said, for the most part all available in one version or another online. I checked; she was right. It is problematic if readers can simply look at our Table of Contents and then access all or most articles elsewhere online.

We already have among the lowest subscription rates in the industry; we have special access arrangements for developing countries, and we have universal free access of our entire archive 12 months after publication. EJIL is quite rigorously refereed and, simply by virtue of the number of submissions, rather selective. It enjoys a prestige which, we hope, is second to none. Consequently, we believe our authors benefit considerably from publication in EJIL in terms of both distribution of their work and recognition. Even from an author’s perspective there is a delicate balance to be struck between the wish to have one’s work as widely available as possible and yet enjoy the imprimatur it receives by having the EJIL brand.

One should not allow an excessive greed for access to kill the goose which lays the golden eggs of recognition and validation. From EJIL’s perspective the golden egg is not material. In fact, the Journal you see is the result of a labour of love. Our past Editors-in-Chief, Renaud Dehousse, Philip Alston and your current Editor all worked and work pro-bono. Our paid staff is skeletal, part time and poorly paid, given their commitment and effort. EJIL spends its surplus income on its own development, in holding symposia, conferences and the like. Still, we cannot be indifferent to the issue of our subscriber base. A healthy, indeed growing, subscriber base is in the overall interest of EJIL – including its authors and readers.

Tricky, then, as I said. In arriving at our proposed solution, we held discussions with endless numbers of people –  readers, authors, colleagues, publishers. The result is simple enough to explain, though only time will tell how well it will work. In our new copyright settlement we are asking our authors, in consideration for publication, for a licence which will give us 12 months digital exclusivity. Our authors will be asked to ensure that once their piece is published in EJIL, all versions, substantially the same, which may already exist on the net, be removed and replaced with a link to EJIL, access to which would require an institutional or personal subscription. (Authors would, of course, continue to receive digital pdf  reprints, etc.) We believe that this strikes an equitable balance among the various interests at play – author, reader, scientific community, EJIL and our publishers OUP.

Overall, taking print and digital rights together, coupled with the low EJIL personal subscription rates and the free archive, we believe you will be hard pressed to find an intellectual property arrangement which is as author and reader friendly as this. Still, we do not quite claim infallibility. We would welcome author and reader comment.

 This brings me to the ‘romantic’ vision of EJIL. In working our way through the copyright issue, notably the digital copyright issue, we were able to take stock in a lucid way of the changes in the reading culture of journals. People of my age, whose academic career began in the pre-digital era, still remember the one and only way to access scholarship: picking up this or that journal in one’s hands, scrutinizing the table of contents, rushing through the book reviews, scanning (with one’s eyes!) the abstracts, reading some articles, maybe making a photocopy or two.

It is all different now, and in some ways for the better. For example, one gets, in an increasing number of institutions, an electronic Table-of-Contents service. (Faculty libraries with ‘recent publication’ corners have become desultory locales.)  But even use of that service is in decline. Mostly we access new scholarship through various online research technologies. If you are fortunate to belong to an institution which has a block subscription to Lexis, Westlaw and the like, you may within seconds have on your screen and ready for print any interesting title which your research has brought your way.

It is precisely this that I lament. At EJIL we do not think of ourselves as a referee service, simply publishing in EJIL the best that comes our way. You will know that about half of our content is Editorial Board generated – the outcome of deliberation at our Board and Scientific Board meetings, resulting in conferences, symposia, commissioned pieces on topics which we believe are of importance and interest. We put a huge amount of thought, discussion and planning into the content of each issue. You know, too, my culinary proclivities – each issue is thought of as a special meal, where the overall menu is as important as the quality of each dish. We definitely think that the whole is greater than the sum of its parts. In an era where one suffers from a surfeit of information, and glut of (mostly self-published) articles, reading EJIL is a good way to maintain a steady diet of quality scholarship and debate about the fundamental and cutting edge issues in the field. But there is another, not trivial, side to all of this. We think of EJIL, too,  as a deliberate counterbalance to the ‘age of the monitor’. Those of you who read us only electronically may not know how much thought and effort we put into the printed issue. Over the years we have hugely improved the quality of cover, paper, print. We say with no embarrassment – we want each issue to be beautiful, lustrous, conveying a tactile and sensory feel of a quality not only commensurate with the intellectual content but with our editorial policy to eschew ephemera and indeed to make each  EJIL issue of book quality. We most decidedly imagine, in this romantic vision, an EJIL moment, when the physical issue lands on your desk – it is, well, bibliophilic.

This is, most likely, a losing battle, a lost cause. At some point we will have to decide whether we want to keep the printed version at all. We did consider the option not long ago. I believe, as long as the likes of Bruno Simma and myself have a say in the matter, that will not happen easily.

In the meantime I want to encourage our individual readers to consider a personal subscription, which includes both the printed version (with the pleasure of the bibliophilic moment …) and the digital version. The rate is £39 for students and £49 for all other individual subscribers.

A No-Brainer @ oxfordjournals.org/our_journals/ejilaw/access_purchase/price_list.html.


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Eric Engle says

December 28, 2010

David Kennedy once told me in conversation that he, like you, takes issue with publishers kindly helping themselves to his copy-rights. He reacts similarly.

My take is otherwise; I push a radical agenda (I've several axes to grind; whatever personal injustice I've suffered is Nothing compared to the third world). Since my potential readers are even poorer than I, and since I want my ideas to be taken up, I push them on my website(s), on ssrn.com, on bepress.com. HAL is the French open archive system. There are other open access archives as well. Meanwhile I have gotten better at talking journals into publishing me. They tend to try to bowdlerize my more unseemly comments. Usually I can talk them out of it, and am getting better at that with time too.

About my sharp language. I don't drop f-bombs just to get a nice ssrn ranking. There is a proper place for sharp language. The pornification of academia isn't it. Someone else can take the F amous role of the eminem of the legal acadamy :o"

Basically the old-model of closed access has been outpaced by technology since the mid 90s. We're already in an open access universe. I think threaded and un/moderated discussions of online publishing is the future. That results in a peering so that one's legal arguments do not range into "sovereign citizen" "last redoubt" territory

Oh wait -- a new publishing idea! [evil laugh..:]