{"id":1639,"date":"2014-01-06T23:22:23","date_gmt":"2014-01-06T23:22:23","guid":{"rendered":"http:\/\/jolt.richmond.edu\/?p=1639"},"modified":"2019-03-08T19:52:32","modified_gmt":"2019-03-09T00:52:32","slug":"not-so-open-access-to-legal-scholarship-balancing-stakeholder-interests-with-copyright-principles","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2014\/01\/06\/not-so-open-access-to-legal-scholarship-balancing-stakeholder-interests-with-copyright-principles\/","title":{"rendered":"Not-So-Open Access to Legal Scholarship: Balancing Stakeholder Interests with Copyright Principles"},"content":{"rendered":"

\"pdf_icon\"Download PDF<\/a><\/p>\n

Cite as: Christopher J. Ryan, Jr., Not-So-Open Access to Legal Scholarship: Balancing Stakeholder Interests with Copyright Principles<\/i>, 20 Rich. J.L. & Tech. 1 (2013), http:\/\/jolt.richmond.edu\/v20i1\/article1.pdf.<\/p>\n

\u00a0<\/p>\n

By Christopher J. Ryan, Jr.*<\/p>\n

\u00a0<\/p>\n

I.\u00a0 Introduction<\/b><\/h2>\n

A.\u00a0 Recent Developments in the Case for Open Access to Scholarly Research<\/b><\/h3>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Last February, John P. Holdren, director of the White House Office of Science and Technology Policy, issued a new policy designed to increase open access to federally-financed research.[1]\u00a0 The memorandum, covering federal agencies with annual expenditures in excess of $100 million for scientific research and development, requires, inter alia<\/i>, that: (1) agencies develop \u201cclear and coordinated policies\u201d to make federally-funded studies freely available to the public within one year of publication, and (2) researchers account for and manage the digital data resulting from federally-funded scientific research.[2]\u00a0 In addition, the policy requires data from publicly-funded research to be stored for \u201clong-term preservation and [be] publicly accessible to search, retrieve, and analyze in ways that maximize the impact and accountability of the Federal research investment.\u201d[3]\u00a0 The policy also encourages agencies to collaborate with each other as well as with private entities to accomplish these important goals.[4]<\/p>\n

[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This new policy marks an important step toward open access and appears to have satisfied both publishers and most open access advocates.[5]\u00a0 The policy\u2019s purpose is clear: it rests upon the proposition that citizens deserve easy access to the results of scientific research funded by their tax dollars.[6] \u00a0The Office of Science and Technology Policy has examined the issue at length by soliciting stakeholder input and convening an interagency work-group to develop a policy that would balance these often divergent interests.[7]\u00a0 Among the stakeholders considered were \u201cscientists and scientific organizations, publishers, members of Congress, and other members of the public,\u201d all of whom recognize the importance of meeting the demand for expanded access to the results of publicly-funded research.[8]<\/p>\n

[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The policy inspired congressional interest, resulting in the Fair Access to Science and Technology Research Act of 2013\u2014bipartisan companion bills in the House and Senate.\u00a0 The companion bills\u2019 aim is to make having the results of federally-financed research publicly available within six months of publication the law of the land rather than the precedent of one presidential administration.[9]\u00a0 Between the policy and the legislation, the timelines for open access after publication differ by six months.[10] \u00a0That said, the functional effect of the policy and legislation is identical: providing a temporal window in which publishers and researchers may capture the value of the publication of new studies while also allowing for public use once these economic interests have been realized.<\/p>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Though both the policy and legislation explicitly cover scientific data, research, and journal articles, each course of action also has the potential to impact scholarship broadly, including federal agencies in the humanities and social sciences.[11] \u00a0Moreover, both documents specifically contemplate the significance of public digital access to all academic scholarship, without simply confining its importance to the sciences.[12]\u00a0 Also, anticipating the end result of recent digital publication trends, both the policy and legislation underscore the effectiveness of digital documentation as a superior medium for storing, archiving, and transmitting data, while acknowledging the limitations of paper as a medium for the same purposes.[13]<\/p>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The policy and the legislation correspond to a rising wave of broad interest in digital access to all scholarship, not simply federally-funded, scientific scholarship.\u00a0 It is conceivable, then, that this regime may have opened the door to requiring open access in all academic scholarship, regardless of discipline\u2014particularly considering that the federal government awards more than $40 billion each year to American universities for research purposes.[14]\u00a0 Should the legislation or a similar statute pass into law, it would necessitate clear guidance for all academic scholarship, carefully balancing publishers\u2019 interests with those of authors, institutions, and the public.<\/p>\n

B.\u00a0 The Open Access Movement and the Internet<\/b><\/h3>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Open Access Movement promotes robust public digital access, via the Internet, to peer-reviewed scholarly work\u2014usually free of charge.[15]\u00a0 The low cost of digitally publishing and disseminating scholarship, when compared with the average cost of publishing scholarship in print, has been a significant boon to the argument for open access.[16]\u00a0 Additionally, Open Access Movement advocates point to the practicality of the Internet as a more convenient, if not increasingly more popular, source for publishing, disseminating, and accessing scholarly work.[17] \u00a0After all, the expediency of immediately downloading scholarship free of charge from a centralized digital repository\u2014not to mention from the convenience of the reader\u2019s computer, tablet, or smart phone\u2014objectively trumps traveling to a research library to perform a lengthy search for the desired scholarly article.[18]<\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 But the Open Access Movement, which has itself benefitted greatly from the rise of Internet, also benefits the average user across a multitude of digital media platforms.[19] This is because public digital access to scholarship makes the public\u2019s vast storehouse of \u201cknowledge\u201d\u2014Wikipedia, which, importantly, services the search functions for much of Apple\u2019s Siri and Google\u2014more reliable.[20]\u00a0 Although secondary and tertiary source sites and programs currently underutilize existing digital scholarly repositories,[21] there is \u201ca potential symbiosis between Wikipedia and academic research in institutional repositories,\u201d[22] because as open-access repositories become more comprehensive, they ensure that the highest caliber of research becomes the primary source for online bloggers, editors, and even the casual Siri query.[23]<\/p>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 At its core, open access, particularly public access to scholarly research, is grounded in considerations of transparency, accountability, democratic legitimacy, and the fulfillment of perhaps the most fundamental function of academia\u2014providing educational service for the public.[24]\u00a0 This Article seeks to address the varied stakeholder interests in academic scholarship\u2014specifically legal scholarship.\u00a0 In Part II, this Article presents a current picture of legal academe and explains the process by which academic scholarship is accessed.\u00a0 Part III explores the scholarship incentive scheme and evolution of policy and case law defining copyright and ownership interests in scholarship, and applies these principles to the modern employment relationship between faculty member and university.\u00a0 In Part IV, this Article addresses concerns that an author\u2019s interests are hampered by the university\u2019s ownership of copyrighted works and discusses the economic and social implications of open access to legal scholarship.\u00a0 Finally, Part V endeavors to recommend considerations for model policy impacting open access to scholarship.<\/p>\n

\u00a0<\/b><\/p>\n

II. Academic Scholarship Today<\/b>\u00a0<\/b><\/h2>\n

A.\u00a0 <\/b>A Snapshot of the Current State of Legal Academe<\/b>\u00a0<\/h3>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 When U.S. News & World Report<\/i> began publishing law school rankings in 1987,[25] a new era of insularity, competition for new students, and fixation on standings relative to peer institutions took hold of legal academe.[26]\u00a0 Pierced by a combination of \u201cU.S. News<\/i>-driven ranking mania, law schools\u2019 insatiable hunger for growth, and huge law firms\u2019 obsession with profit above all else,\u201d the bubble burst.[27]\u00a0 In January 2013, the Law School Admission Council reported that law school admission applications were headed for a thirty-year low, in part, because of \u201cincreased concern over soaring tuition, crushing student debt, and diminishing prospects of lucrative employment upon graduation.\u201d[28] \u00a0The number of law school applicants this year\u201454,000\u2014is nearly half of what it was in 2004.[29]<\/p>\n

[10]\u00a0\u00a0\u00a0\u00a0\u00a0 As the volume of law school applications rose in the last quarter of the twentieth century, universities increasingly treated their law schools as profit centers: while data from private law schools is virtually inaccessible, a 2010 report from the University of Baltimore School of Law corroborates a widely held view that universities appropriate between twenty and twenty-five percent of their law schools\u2019 gross revenues.[30]\u00a0 Dwindling applications and enrollment in the last few months has prompted law schools to layoff and buyout valuable employees.[31]\u00a0 Many have attacked the U.S. News <\/i>methodology for compiling its law school rankings as a source of fuel for the conflagration that has engulfed legal education in recent months,[32] even suggesting that faculty production of scholarship is so vital to legal academe that SSRN output should be the measure of a law school\u2019s faculty.[33]\u00a0 Whatever the cause of these problems, the landscape of legal academe\u2014a historically immutable field[34]\u2014is incontrovertibly changed and must adapt to the modern market to reestablish its relevancy.\u00a0 Doing so requires reclaiming the primary public functions of legal academe: (1) keeping up with the needs of the profession and the public,[35] and (2) educating the profession and the public on legal affairs.[36]<\/p>\n

B.\u00a0 Access to Legal Scholarship<\/b><\/h3>\n

[11]\u00a0\u00a0\u00a0\u00a0\u00a0 Academic scholarship is subject to the practices of the proprietary publishing industry, which, for both academicians and universities, places certain restrictions on scholarship: from access policies and subscription fees to the copyright assignment requirement of several scholarly journals.[37]\u00a0 In the last decade, university libraries have been forced to choose between purchasing monographs and journal subscriptions, or undergoing complete deaccession of non-essential materials; in contrast, the proprietary publishing industry has continued to enjoy considerable profit margins.[38]\u00a0 This is not to say the proprietary publishing industry is the villain in this story; it does, however, account for publishing the lion\u2019s share of academic scholarship to the exclusion of resources that promote open access.[39]<\/p>\n

[12]\u00a0\u00a0\u00a0\u00a0\u00a0 The publication of American legal scholarship, on the other hand, follows somewhat of a different model from that of the other academic disciplines; it is lacking in many of the complications that are commonplace in, for example, publishing scientific scholarship.[40]\u00a0 While commercial law journals,[41] learned law society journals,[42] refereed law journals,[43] and peer-reviewed law journals[44] do exist, their market share is overshadowed by law journals published by or affiliated with American law schools.[45]\u00a0 Outside grants rarely fund the production of legal research; in many ways legal publishing already employs open access funding initiatives, similar to how universities encourage open access publishing of scholarship from the other academic disciplines, such as underwriting the \u201cauthor pays\u201d approach to open-access publishing,[46] and instituting policies to promote faculty contributions to open repositories or journals.[47]<\/p>\n

[13]\u00a0\u00a0\u00a0\u00a0\u00a0 Critics suggest that an open-access publishing model is unrealistic, ignores vital market factors, and is premised on a deficient understanding of business.[48]\u00a0 Because open-access publishing methods are largely untested, do not enjoy the same readership, and have not as yet developed a financially viable model, these same critics caution that authors and publishers should be wary of open access publishing\u2014after all, someone must pay the costs associated with publishing scholarship.[49]\u00a0 These arguments, however, are considerably less convincing in their application to legal scholarship.<\/p>\n

[14]\u00a0\u00a0\u00a0\u00a0\u00a0 Legal scholarship presents the most straightforward case for open-access publishing because of its unique independence from market factors and reduced reliance on the commercial publishers relative to its peer academic disciplines.[50]\u00a0 The cost of publishing legal scholarship in law journals is substantially underwritten by the universities with which the law schools are associated, \u201cto an extent that dwarfs both the mailing and printing costs that make up law journals\u2019 chief budgeted expenditures and the subscription and royalty payments that account for their chief budgeted revenues.\u201d[51]\u00a0 Furthermore, the majority of American law journals rely on unpaid law students to select and edit legal scholarship, and no one participating in the law journal publishing process\u2014from research, writing, selecting, editing, and publication\u2014does so because of copyright incentives.[52]\u00a0 Perhaps the investment of the law students and their institutions in the production and dissemination of legal scholarship through their law journals\u2014possibly even the very purpose of legal academe\u2014is enhanced by open access publishing.[53]<\/p>\n

\u00a0<\/b><\/p>\n

III. The Misaligned Incentive Scheme in Academic Scholarship<\/b><\/h2>\n

[15]\u00a0\u00a0\u00a0\u00a0 Incentives to encourage academic scholarship in legal academe vary slightly from other disciplines.\u00a0 However, across all disciples, the majority of publishers of academic scholarship charge expensive subscription fees and limit access by conditioning publication on the scholar\u2019s transfer of copyright interests.[54]\u00a0 Scholars\u2019 willingness to transfer their copyright interests to publishers is the product of a system that lacks sufficient incentives for the scholars.[55]\u00a0 In academia, the credo<\/i> is, and may always be, \u201cpublish or perish;\u201d a faculty member\u2019s growing curriculum vitae<\/i> and publication record is often the measure of his or her professional performance.[56]<\/p>\n

[16]\u00a0\u00a0\u00a0\u00a0\u00a0 Not only is a large quantity of scholarship publication an important proxy for a successful career as an academic, universities also incentivize scholars to publish in the most prestigious journals.[57]\u00a0 The problem is a vicious cycle: the perceived reputation of the publication enables its publisher to require scholars to transfer their copyright interests to the publisher, and the publisher\u2019s ownership of these interests, in turn, enables the publisher to restrict access and charge expensive fees.[58]\u00a0 While duly according the importance of publication reputation, the current incentive scheme that is effectively stripping important copyrights from scholars represents a departure from the recognition of important cultural, social, and institutional dimensions of faculty-produced scholarship.[59]<\/p>\n

[17]\u00a0\u00a0\u00a0\u00a0\u00a0 When the Constitutional Convention of 1787 was convened to discuss what would become the Copyright Clause, it decided against the Hegelian option written by Charles Pinckney in favor of a clause combining proposals from both Pinckney and James Madison, which is now enshrined in Article I of our Constitution.[60]\u00a0 The Copyright Clause reads: \u201cThe Congress shall have the Power . . . To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective
\nWritings and Discoveries.\u201d[61]\u00a0 The plain language of the Clause\u2019s prefatory language reveals the drafters\u2019 aspirational intent: scholarship and invention were meant to educate and benefit the citizens of the new republic.\u00a0 Recalibrating the measure of professional performance in academe in favor of incentivizing relevant, accessible publication that promotes the goodwill of the university, regardless of the source of publication, may retract the problem of self-reinforcing incentives and realign the creation of scholarship with our nation\u2019s founding copyright principles.<\/p>\n

A.\u00a0 Legal Treatment of Ownership Interests in Scholarship<\/b><\/h3>\n

[18]\u00a0\u00a0\u00a0\u00a0\u00a0 Ownership of the copyright interests in scholarship is somewhat ambiguous and is the subject of considerable debate.[62]\u00a0 Under federal statute, a copyright in a work attaches first to the author of the work.[63]\u00a0 Accordingly, the long-standing tradition of the academy affords scholars most, if not all, the copyright interests in their work.[64]\u00a0 However, the practical application of university copyright policies circumvents the traditional rule.[65]\u00a0 In fact, for the most part, universities claim ownership in the copyright interests of works created by their faculty under the \u201cworks made for hire\u201d exception.[66]\u00a0 Under the Copyright Act, absent a written and signed instrument in which the parties have expressly agreed otherwise, works made for hire are considered to be the property of the employer or person for whom the work was prepared, for purposes of copyright.[67]\u00a0 The statutory hook of works made for hire contemplates the following arrangements: (1) works prepared by an employee in the scope of his or her employment, or (2) works specially ordered under one of nine statutory classifications[68] where the parties have also expressly agreed in a signed writing that the work is made for hire.[69]<\/p>\n

[19]\u00a0\u00a0\u00a0\u00a0\u00a0 Few, if any, faculty works are specially ordered or subject to a signed agreement between university and faculty member categorizing scholarship as a work made for hire; in fact, such an arrangement would be both inefficient and burdensome. Judicial guidance responsive to the question of whether faculty-created works are considered to be \u201cprepared by an employee within the scope of his or her employment\u201d[70] has been relatively scarce, but does provide some, albeit complicating, direction.[71] In considering this issue with regard to copyright interests, the Supreme Court\u2019s multi-factored test in Community for Creative Non-Violence v. Reid<\/i>[72] represents the standard for resolving the question of whether an employment relationship exists.[73]<\/p>\n

[20]\u00a0\u00a0\u00a0\u00a0\u00a0 The factors to be considered are: (1) the hiring party’s right to control the manner and means by which the product is accomplished; (2) the skill required; (3) the source of the instrumentalities and tools; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party’s discretion over when and how long to work; (8) the method of payment; (9) the hired party’s role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; and (13) the tax treatment of the hired party.[74] Sealed with ambiguity, the true hallmark of a balancing test handed down from on high, the Court\u2019s decision specifically noted that \u201c[n]o one of these factors is determinative,\u201d and that \u201cthe extent of control the hiring party exercises over the details of the product is not dispositive.\u201d[75] While this balancing test only reveals the fact that copyright interests are not decisively settled, it does articulate the criteria that establishes an employment relationship between faculty members and their employer institutions, as well as the ownership of copyright interests in faculty-created works.<\/p>\n

B.\u00a0 The Application of Copyright Interests in the Modern Academic Employment Relationship<\/b><\/h3>\n

[21]\u00a0\u00a0\u00a0\u00a0\u00a0 Applying the trappings of copyright law as articulated through statutes and case law discussed above, faculty members are almost certainly employees\u2014as opposed to independent contractors\u2014for purposes of the works made for hire doctrine. Universities tend to hire faculty members who hold terminal degrees and are thus expected to possess refined knowledge and skill in their field; however, a faculty member\u2019s level of skill is distinguishable from that of a project-oriented, independent contractor.[76] Furthermore, the fact that a university chooses not to wield control over the manner and means of faculty-created works does not itself indicate that the university does not possess rights to control faculty creations.[77] Also, while universities serve a multitude of functions, their business is irreducibly that of education and research; thus, faculty-created works, whether manifested as scholarship, service, or teaching, form an essential part of universities\u2019 regular activities.[78]<\/p>\n

[22]\u00a0\u00a0\u00a0\u00a0\u00a0 Despite this seemingly clear relationship, not every court has characterized the association between a university and faculty member in the same light for purposes of copyright law. Such cases predate the Community for Creative Non-Violence<\/i> decision, the new authoritative precedent on the issue, but do also cite academic tradition and the fact that scholarship is the result of highly-skilled expertise and creativity as support for deciding that such faculty-created works should fall outside the scope of employment.[79] Certainly this position has its merits; however, unlike common law traditions, which occasionally become codified as the law of the land, academic traditions are nonbinding.<\/p>\n

[23]\u00a0\u00a0\u00a0\u00a0\u00a0 Finally, a faculty member\u2019s motivations for creating a work should have little bearing on this analysis. The jurisprudence in this area only requires that the work be actuated, in some part, by a purpose to serve the university\u2014a very low threshold to cross.[80] Self-motivation to create a work is not dispositive of whether the work was undertaken to serve, at least in part, the interests of the employer.[81] Unless a work is made \u201cwith no intention to [create the work] as a part of or incident to\u201d employment as a university faculty member,[82] the work falls within the scope of employment.[83]\u00a0 Thus, nearly all faculty-created works are: (1) made within the scope of employment; (2) of a nature for which faculty are employed to perform; and (3) actuated, at least in part, by a purpose to serve the university.[84]\u00a0 There exists a strong, nearly irrefutable presumption, then, that faculty members are employees of the university for copyright purposes under the works made for hire doctrine; therefore, copyright in faculty-created works vests initially in the university.[85]<\/p>\n

\u00a0<\/b><\/p>\n

IV.\u00a0 Concerns, Benefits, and Applications of University Copyright Interests in Faculty-Produced Scholarship<\/b><\/h2>\n

A. \u00a0Addressing the Concern That the \u201cMonopoly\u201d of University Copyright Interests in Scholarship Is a Fetter to Faculty Creativity and the Educational Function of the University<\/b><\/h3>\n

[24]\u00a0\u00a0\u00a0\u00a0\u00a0 From academe\u2019s inception, its uniquely creative environment has been its defining feature. Critics argue that a university\u2019s exercise of copyright ownership over faculty-created works undermines faculty innovation by drastically altering this environment.[86]\u00a0 Further, opponents of vesting the copyright interests of faculty-created work in the university argue that universities should not enforce ownership over these copyright interests at the risk of degrading long-held academic principles and traditions.[87]\u00a0 Additionally, there are those with concerns that, in practice, the pecuniary interests of the institution will supplant the non-pec
\nuniary motivations of the faculty member.[88]\u00a0 However, the current copyright regime\u2019s treatment of ownership interests in the copyright of scholarship has neither stunted faculty creativity nor encumbered the production of scholarship. These concerns, while valid, have yet to come to fruition since the Copyright Act was revised in 1976 and construed to vest copyright interests in universities in their faculty-created scholarship.[89]<\/p>\n

[25]\u00a0\u00a0\u00a0\u00a0\u00a0 To date, attempts have been unsuccessful to circumvent the default position that the works made for hire doctrine applies to scholarship produced by faculty member employees of a university because they fail to satisfy the requirements of the Copyright Act.[90]\u00a0 Though the failure of such policies may negatively impact the proprietary scholarly publishing industry, such detrimental impact on this industry also remains to be seen.[91]\u00a0 It is worth noting that, despite these ownership rights vesting first in the university, in practice universities rarely enforce them as against their faculty members; to do so could diminish what is perhaps a university\u2019s greatest asset\u2014its goodwill.[92]\u00a0 A university, not unlike other collective groups, is the sum of its parts. Thus, in place of exercising ownership rights in scholarship to the exclusion of its faculty member creator, it is in the best interest of the university, in fulfilling its educational function, to support the public\u2019s interest in open access to scholarly works.[93]<\/p>\n

B.\u00a0 The Implications of Open Access to Legal Scholarship<\/b><\/h3>\n

[26]\u00a0\u00a0\u00a0\u00a0\u00a0 Believe it or not, the seeds of change\u2014from purely proprietary publishing to open-access publishing\u2014have been sown at the very top of legal academe for over five years.\u00a0 In 2008, the Harvard Law School faculty voted to offer their scholarship \u201cfreely available in an online repository.\u201d[94]\u00a0 Later that year, the directors of the law libraries at eleven of the most elite law schools met at Duke Law School to draft what became the Durham Statement on Open Access to Legal Scholarship.[95]\u00a0 Ushering in the open access era, the Durham Statement called for all law schools to move toward electronic publication of scholarship, to commit to making available and storing electronic versions of scholarship in stable, open, digital formats, and, eventually, to stop publishing journals.[96]\u00a0 The principal argument for a movement toward open access in legal academe is an easy case to make: in addition to the philosophical principles advanced by open access, on a practical level it supports a vital professional goal of the faculty members by maximizing the impact of their work.[97] \u00a0After all, what attorney does not appreciate recognition in his or her field? \u00a0Not surprisingly, \u201c[f]ew commentators have objected to the Durham Statement\u2019s call for open access publication of law journals.\u201d[98]<\/p>\n

[27]\u00a0\u00a0\u00a0\u00a0\u00a0 Apart from these elite schools, however, few schools have followed suit and very few United States law reviews are registered with the Directory of Open Access Journals.[99]\u00a0 That being said, a growing number of schools post some scholarship content on their publicly-accessible journal websites, despite the risks of reducing revenue from print subscriptions and royalty income from proprietary online aggregators.[100]\u00a0 This small gesture may expose legal academe\u2019s less than ostensible belief that scholarship fulfills a public good.[101]<\/p>\n

[28]\u00a0\u00a0\u00a0\u00a0\u00a0 While this Article recognizes the strong policy considerations for applying open-access principles to legal scholarship, the discussion should also be approached from an economic perspective. Perhaps legal academe has tarried in adopting open access publishing because of the absence of any demand to explore low-cost alternatives to the traditional subscription model.[102]\u00a0 Legal scholarship publishing costs are modest when compared with scholarly publishing in other academic disciplines.[103]\u00a0 \u201cLaw journal subscription prices are low, and have risen at less than the rate of inflation for a generation.\u201d[104]\u00a0 At the same time, law faculty members enjoy virtually free access to electronic versions of published law review articles through proprietary outlets, such as HeinOnline, Lexis, and Westlaw, all of which require subscriptions.[105]\u00a0 The driving force for open access in legal publishing comes almost entirely from the perspective of supplying scholarship: law school faculty members who want to increase readership of their research outside of legal academe cannot reach this audience through HeinOnline, Lexis, and Westlaw.[106]\u00a0 The latter two resources have made vast fortunes from material that is mostly in the public domain, by making it available subject to useful search functionality, but are expensive and \u00a0functionally irrelevant to academics outside legal academe.[107]\u00a0 While these powerful search tools are not without value, reliance on them diminishes when law journals and their parent institutions develop resources to publicly access and archive legal scholarship\u2014an idea with the potential to transform legal scholarship as it currently exists.[108]<\/p>\n

\u00a0<\/b><\/p>\n

V. A Recommendation for Ensuring Open Access to Legal Scholarship<\/b><\/h2>\n

[29]\u00a0\u00a0\u00a0\u00a0\u00a0 Universities, the holders of copyright in academic scholarship, are uniquely situated to achieve their public, educational function, as well as to reduce reliance on the proprietary scholarly publishing industry, and empower faculty while promoting open access.[109]\u00a0 In legal academe, many universities already underwrite the cost of submitting scholarship for publication and should extend their support one small step further by providing faculty with financial assistance to cover the associated costs of publication in open-access journals and repositories. [110]\u00a0 Given that many universities, particularly research universities, are the recipients of federal funds derived from public tax dollars, it is in the universities\u2019 best interest to reinvest some portion of these funds in relevant and publicly accessible scholarship to benefit not only the profession but also local, regional, and national communities.[111]<\/p>\n

[30]\u00a0\u00a0\u00a0\u00a0\u00a0 With these changes, academe should prioritize the development of a viable alternative method of peer review.[112]\u00a0 Internally, universities must shift the focus of the existing academic incentive system, and its reliance on the proprietary publishing industry, to examine the ways in which faculty accumulate goodwill for employer institutions.[113] Open-access journals, open educational resources, and open archival repositories serve the important interests of the public that are often ignored in the context of the debate over copyright interest in academic scholarship.[114]\u00a0 The language of the Copyright Clause could not be clearer in stating that creation of copyrightable works inures to the benefit of the public.[115] Academe\u2019s support of open-access resources is essential; however, it is not necessary for academe to completely emancipate itself from proprietary publishers, many of whom serve an important role in the profession and possess their own stakeholder interests in copyright.[116]\u00a0\u00a0<\/p>\n

[31]\u00a0\u00a0\u00a0\u00a0\u00a0 The reality is that proprietary scholarly publishers currently exert a disproportionate amount of control over scholarly works.[117]\u00a0 Perhaps the best elements of existing solutions proffer the best foundation for the application of open access to scholarly publication. The temporal solution put forth by the White House Office of Science and Technology Policy appears to handle the interests of each stakeholder\u2014the scholar, the institution, the publisher, and the public\u2014most fairly.[118]\u00a0 The open-access repository of faculty scholarship chartered by Harvard presents the ideal access portal and archive of publicly accessible scholarship.[119]\u00a0\u00a0 Finally, when compared with individual faculty members, universities have a substantially stronger bargaining position to help reclaim the broad copyright interes
\nts that scholars transfer to their publishers as of right. [120]\u00a0 By exercising ownership of copyright interests in scholarship, universities have the ability to profoundly influence the relevancy and public access of academic scholarship, promoting both the constitutional invocation of the Copyright Clause and the primary public function of the university\u2014education.\u00a0\u00a0\u00a0<\/p>\n

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*CJ Ryan received an A.B. from Dartmouth College, a M.Ed. degree from the University of Notre Dame, and a J.D. degree from the University of Kentucky College of Law, where he was Notes Editor on Volume 101 of the Kentucky Law Journal.\u00a0 In July 2012, Kentucky Governor Steven L. Beshear appointed CJ to serve a one-year term on the Kentucky Council on Postsecondary Education, the Commonwealth\u2019s higher education policy and regulation board.\u00a0 CJ would like to thank Professor Brian L. Frye, of the University of Kentucky College of Law, for his contributions to this article.<\/p>\n

 <\/p>\n

[1] See <\/i>Memorandum from John P. Holdren, Director, Exec. Office of the President, Office of Sci. and Tech. Policy, to the Heads of Exec. Dep\u2019ts and Agencies 1 (Feb. 22, 2013), available at <\/i>http:\/\/www.whitehouse.gov\/sites\/default\/files\/microsites\/ostp\/ostp_public_access_memo_2013.pdf.<\/p>\n

[2] See id.<\/i> at 1-6.<\/p>\n<\/div>\n

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[3] Id.<\/i> at 3.<\/p>\n<\/div>\n

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[4] See id.<\/i> at 4.<\/p>\n<\/div>\n

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[5] Scholarly Publishing and Academic Resources Coalition (SPARC), a leader in the open access movement, and the Association of Research Libraries \u201ccelebrated the news, calling the new policy \u2018historic.\u2019 . . . [T]he Association of American Publishers, which has often clashed with open-access advocates. . . . issued a statement calling the policy a \u2018reasonable, balanced resolution.\u2019\u201d\u00a0 Jennifer Howard, Activists and Publishers Cheer Policy on Open Access but Look to Next Battle, <\/i>Chron. Higher Educ., Mar. 8, 2013, at A6; see<\/i> The Fair Access to Science and Technology Research Act (FASTR)<\/i>, Am. Libr. Ass\u2019n, <\/i>http:\/\/www.ala.org\/advocacy\/access\/legislation\/fastr (last visited Nov. 6, 2013). For more information on SPARC, such as its Author Addendum and discussion of author rights, see SPARC Author Addendum to Publication Agreement<\/i>, SPARC, www.sparc.arl.org\/resources\/authors\/addendum-2007 (last visited Nov. 17, 2013).<\/p>\n<\/div>\n

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[6] See<\/i> Memorandum from John P. Holdren, supra <\/i>note 1, at 1 (\u201cThe Administration is committed to ensuring that, to the greatest extent and with the fewest constraints possible and consistent with law and the objectives set out below, the direct results of federally funded scientific research are made available to and useful for the public, industry, and the scientific community.\u201d ).<\/p>\n<\/div>\n

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[7] Michael Stebbins, Expanding Public Access to the Results of Federally Funded Research<\/i>, Off. Sci. & Tech. Pol\u2019y (Feb. 22, 2013, 12:04 PM), http:\/\/www.whitehouse.gov\/blog\/2013\/02\/22\/expanding-public-access-results-federally-funded-research.<\/p>\n<\/div>\n

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[8] Id.<\/i>\u00a0 To wit, \u201cover [sixty-five] thousand of [these stakeholders] recently signed a We the People<\/i> petition asking for expanded public access to the results of taxpayer-funded research.\u201d\u00a0 Id.<\/i><\/p>\n<\/div>\n

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[9] See <\/i>Howard, supra<\/i> note 5, at A6; see also<\/i> Fair Access to Science and Technology Research Act of 2013, H.R. 708, 113th Cong. (1st Sess. 2013); Fair Access to Science and Technology Research Act of 2013, S. 350, 113th Cong. (1st Sess. 2013).\u00a0 It should be noted that presenting companion bills\u2014of any kind\u2014in the House and Senate with bipartisan support in the 113th Congress is no small feat.<\/p>\n<\/div>\n

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[10] Compare <\/i>Memorandum from John P. Holdren, supra <\/i>note 1, at 3 (\u201c[E]ach agency plan shall . . . use a twelve-month post-publication embargo period as a guideline for making research papers publicly available . . . .\u201d), with <\/i>Fair Access to Science and Technology Research Act of 2013, H.R. 708, 113th Cong. \u00a7 4(b)(4) (1st Sess. 2013), and <\/i>Fair Access to Science and Technology Research Act of 2013, S. 350, 113th Cong. (1st Sess. 2013) (\u201cEach Federal research public access policy shall provide for . . . free online public access to such final peer-reviewed manuscripts or published versions as soon as practicable, but not later than [six] months after publication in peer-reviewed journals.\u201d).<\/p>\n<\/div>\n

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[11] See <\/i>Howard, supra <\/i>note 5, at A6 (noting that the policy may impact agencies such as the Smithsonian Institution or the National Endowment for the Humanities).\u00a0<\/p>\n<\/div>\n

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[12] See generally<\/i> H.R. 708; S. 350; Memorandum from John P. Holdren, supra <\/i>note 1, at 1.<\/p>\n

[13] See<\/i> Timothy K. Armstrong, Crowdsourcing and Open Access: Collaborative Techniques for Disseminating Legal Materials and Scholarship<\/i>, 26 Santa Clara Computer & High Tech. L.J. 591, 592 (2010) (\u201cA wealth of knowledge, including legal knowledge, remains effectively trapped inside paper records, where it can be used only by those with access to the physical medium in which it is contained.\u00a0 The movement to digitize paper records and make them freely available online promises to liberate information, including legal information, from these physical constraints and make it accessible around the globe.\u201d).\u00a0 For example, the Library of Congress has undertaken the digitizing of historical American documents and source texts for its American Memory Project.\u00a0 See<\/i> id.<\/i> at 606 n.69.\u00a0 In addition, the Google Books project, which aimed to increase open access to scholarship, was the recent subject of copyright litigation.\u00a0 See<\/i> Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 669-70 (S.D.N.Y. 2011) (denying Google\u2019s settlement agreement with plaintiff authors and publishers who alleged copyright infringement of digitally copied books and writings without authorization).\u00a0 However, with vast reserves of knowledge in print, the trouble with digitizing extant scholarship is the enormity of the task; even the most organized and well-funded efforts simply cannot make appreciable progress in this regard.\u00a0 In fact, the Library of Congress estimated that, at its current pace, it would take \u201calmost two thousand years<\/i> to digitize the nine billion text records it presently holds in its collection.\u201d \u00a0<\/i>Armstrong, supra<\/i> at 592-93.; see <\/i>Katie Hafner, History, Digitized (and Abridged)<\/i>, N.Y. Times (Mar. 10, 2007), http:\/\/www.nytimes.com\/2007\/03\/10\/business\/yourmoney\/11archive.html?pagewanted=all&_r=0.\u00a0 But see<\/i> Stacey Patton, Group Advocates Option of Longer Embargoes on Digital Dissertations<\/i>, Chron. Higher Educ., Aug. 2, 2013, at A9 (\u201cThe American Historical Association has published a new policy statement that \u2018strongly encourages\u2019 graduate programs and university libraries to allow new Ph.D.\u2019s to extend embargoes on their dissertations in digital form for as many as six years.\u00a0 The association says its stance seeks to balance the competing ideals of the profession: timely dissemination of new historical knowledge and the ability of young historians to choose when to release their research without jeopardizing a future publishing contract or tenure. . . . \u2018History has been and remains a book-based discipline,\u2019 the statement says, \u2018and the requirement that dissertations be published online poses a tangible threat to the interest and careers of junior scholars in particular.\u2019\u201d).<\/p>\n<\/div>\n

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[14] See <\/i>H.R. 708; S. 350; Memorandum from John P. Holdren, supra <\/i>note 1, at 3-6; s<\/i>ee also<\/i> Christine M. Matthews, Cong. Research Serv., R41895, Federal Support for Academic Research 9 (2012), available at<\/i> http:\/\/www.fas.org\/sgp\/crs\/misc\/R41895.pdf; 24\/7 Wall St., 10 Universities that Receive the Most Government Money<\/i>, Huffington Post (Apr. 29, 2013, 3:57 PM), http:\/\/www.huffingtonp
\nost.com\/2013\/04\/27\/universities-government-money_n_3165186.html.\u00a0 See generally <\/i>\u00a0John V. Lombardi, et al., Ctr. for Measuring U. Performance, <\/i>The Top American Research Universities: 2011 Annual Report (2011), available at<\/i> http:\/\/mup.asu.edu\/research2011.pdf (analyzing research expenditures and different standards of achievement for universities throughout the United States).<\/p>\n<\/div>\n

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[15] See <\/i>Peter Suber, Open Access Overview<\/i>, Earlham Coll., http:\/\/legacy.earlham.edu\/~peters\/fos\/overview.htm (last visited Nov. 8, 2013) [hereinafter Open Access Overview<\/i>].\u00a0 This is particularly the case with a flavor of open access known as \u201cgratis open access.\u201d\u00a0 See<\/i> Peter Suber, Gratis and Libre Open Access<\/i>, SPARC, http:\/\/www.sparc.arl.org\/resource\/gratis-and-libre-open-access (last visited Nov. 8, 2013);s<\/i>ee also<\/i> Sean Burns, et al., Lecture for the University of Kentucky Open Access Week, #Altmetrics: Demystifying the Link between Research Impact and Social Media (Oct. 22, 2013) (supporting the use of scholarly blogs and gratis open-access publications for consideration by tenure committees in academic portfolios)).\u00a0 For a strong explanation and apology of the Open Access Movement by the former national president of the Association of University Professors, see Cary Nelson, Open Access and Academic Freedom<\/i>, Inside Higher Ed (Nov. 15, 2013), http:\/\/www.insidehighered.com\/views\/2013\/11\/15\/essay-impact-open-access-requirements-academic-freedom.<\/p>\n<\/div>\n

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[16] See<\/i> Open Access Overview, supra <\/i>note 15. Primarily, the two vehicles for delivering open access to research articles to the public are open-access journals and open-access archives or repositories. \u00a0See id.<\/i>; see also <\/i>Burns, et al., supra<\/i> note 15.<\/p>\n<\/div>\n

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[17] See <\/i>Robinson Meyer, How Open-Access Scholarship Improves the Internet<\/i>, Atlantic (Aug. 5, 2013, 2:43 PM), http:\/\/www.theatlantic.com\/technology\/archive\/2013\/08\/how-open-access-scholarship-improves-the-internet\/278371\/.<\/p>\n<\/div>\n

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[18] See id.<\/i><\/p>\n<\/div>\n

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[19] See id.<\/i><\/p>\n<\/div>\n

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[20] See id.<\/i>; see, e.g.<\/i>, <\/i>Frederic Lardinois, Apple Updates Siri with Twitter, Wikipedia, Bing Integration, New Commands and Male and Female Voices<\/i>, Tech Crunch (June 10, 2013), http:\/\/techcrunch.com\/2013\/06\/10\/apple-updates-siri-with-twitter-wikipedia-bing-integration-new-commands-and-male-and-female-voice\/.<\/p>\n<\/div>\n

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[21] For example, Wikipedia cites to less than one percent of any digital repository\u2019s articles.\u00a0 See <\/i>Meyer, supra<\/i> note 17; see also<\/i> Alistair G. Smith, Wikipedia and Institutional Repositories: An Academic Symbiosis?<\/i>, in <\/i>Proceedings of the ISSI 2011 Conference: International Conference of the International Society for Scientometrics & Informetrics 794, 797 (2011), available at<\/i> http:\/\/www.vuw.ac.nz\/staff\/alastair_smith\/publns\/SmithAG2011_ISSI_paper.pdf.<\/p>\n<\/div>\n

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[22] Smith, supra <\/i>note 21, at 800.<\/p>\n<\/div>\n

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[23] See <\/i>Meyer, supra<\/i> note 17.<\/p>\n<\/div>\n

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[24] See<\/i> Armstrong, supra<\/i> note 13, at 593, 597.<\/p>\n<\/div>\n

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[25] Paul L. Caron & Rafael Gely, What Law Schools Can Learn from Billy Beane and the Oakland Athletics<\/i>, 82 Tex L. Rev. 1483, 1510 (2004).\u00a0 For a concise history of the U.S. News & World Report<\/i> law school rankings, see id.<\/i> at 1509-11.\u00a0 At the time of this article\u2019s publication, the most recent U.S. News<\/i> law school rankings are available at USnews.com.\u00a0 Best Law School Rankings 2014<\/i>, US News, http:\/\/grad-schools.usnews.rankingsandreviews.com\/best-graduate-schools\/top-law-schools\/law-rankings (last visited Oct. 9, 2013).<\/p>\n<\/div>\n

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[26] See<\/i> Steven J. Harper, Pop Goes the Law<\/i>, Chron. Rev., Mar. 15, 2013, at B6-B7 (blaming \u201cthe bursting of the law bubble\u201d on, among other things, \u201cdecades of greed and grandiosity[,] . . . the profession\u2019s darker side, including the recession\u2019s exacerbation of the attorney glut, . . . [and the fact that] law schools and the American Bar Association [] abdicated their responsibilities in . . . an effort to satisfy the mindless criteria underlying law-school rankings, especially U.S. News & World Report<\/i>\u2019s annual list\u201d).\u00a0 In reality, the decline in law schools is more nuanced, but is inextricably tied to the decline of the economy during the Great Recession and the resulting decline in demand for law jobs.\u00a0<\/p>\n<\/div>\n

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[27] Id.<\/i> at B6; see<\/i> Ronald G. Ehrenberg, American Law Schools in a Time of Transition<\/i>, 63 J. Legal Educ. 98, 98 (2013) (\u201cThe economic model for law schools is breaking down because of the collapse of the job market for new lawyers, making it difficult to justify ever increasing tuition levels.\u201d); Genevieve Blake Tung, Academic Law Libraries and the Crisis in Legal Education<\/i>, 105 L. Libr. J. 275, 275 (2013); Ethan Bronner, Law School Applications Fall as Costs Rise and Jobs Are Cut<\/i>, N.Y. Times (Jan. 30, 2013), http:\/\/www.nytimes.com\/2013\/01\/31\/education\/law-schools-applications-fall-as-costs-rise-and-jobs-are-cut.html?_r=0 (\u201c\u2018We are going through a revolution in law with a time bomb on our admissions books,\u2019 said William D. Henderson, a professor of law at Indiana University, who has written extensively on the issue.\u00a0 \u2018Thirty years ago if you were looking to get on the escalator to upward mobility, you went to business or law school.\u00a0 Today, the law school escalator is broken.\u2019\u201d).<\/p>\n<\/div>\n

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[28] Bronner, supra <\/i>note 27; s<\/i>ee also<\/i> Staci Zaretsky, Law School Applications Plummet<\/i>, Above the Law (Aug. 20, 2013, 11:08 AM), http:\/\/abovethelaw.com\/2013\/08\/law-school-applications-continue-to-tumble\/. \u00a0This could well be a response to the bleak marketplace for full time, permanent attorney jobs available to recent law graduates. \u00a0See<\/i> Joe Palazzolo, Law Grads Face Brutal Job Market<\/i>, Wall Street J. (June 25, 2012, 10:18 AM), http:\/\/online.wsj.com\/news\/articles\/SB10001424052702304458604577486623469958142. Worse yet for the future of the legal profession, significantly less \u201cqualified\u201d prospective law school applicants sat for the LSAT in 2012 than did in 2011, suggesting that the wrong students\u2014the top performers\u2014have written off their plan to pursue a law degree. See Jordan Weissmann, The Wrong People Have Stopped Applying to Law School<\/i>, Atlantic (April 10, 2012, 10:37 AM), http:\/\/www.theatlantic.com\/business\/archive\/2012\/04\/the-wrong-people-have-stopped-applying-to-law-school\/255685\/.<\/p>\n<\/div>\n

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[29] See id.<\/i>; see also<\/i> Harper, supra<\/i> note 26, at B6.<\/p>\n<\/div>\n

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[30] See <\/i>Harper, supra<\/i> note 26, at B7. \u00a0Perhaps, for this very reason, a respected two-year law degree\u2014or at least an optional third year\u2014is a pipe dream. \u00a0See<\/i> Matt Barnum, The Two-Year Law Degree: A Great Idea That Will Never Come to Be<\/i>, Atlantic (Nov. 12, 2013, 8:53 AM), http:\/\/www.theatlantic.com\/education\/archive\/2013\/11\/the-two-year-law-degree-a-great-idea-that-will-never-come-to-be\/281341\/.<\/p>\n

[31] See, e.g.<\/i>, David Lat, A Law School\u2019s Possible Purge of Its Junior Faculty Ranks<\/i>, Above the Law (July 1, 2013, 4:05 PM), http:\/\/abovethelaw.com\/2013\/07\/a-law-schools-possible-purge-of-its-junior-faculty-ranks\/; Debra Cassens Weiss, \u2018Massive Layoffs\u2019 Predicted in Law Schools Due to Big Drop in Applicants<\/i>, A.B.A. J. (Jan. 31, 2013, 6:37 AM), http:\/\/www.abajournal.com\/news\/article\/massive_layoffs_predicted_in_law_schools_due_to_big_drop_in_applicants; Jon Wolper, Vermont Law School Gives Buyouts to Ten Workers<\/i>, Valley News (Jan. 18, 2013), http:\/\/www.vnews.com\/news\/3896880-95\/buyouts-laid-law-members; Staci Zaretsky, Much-Maligned Law School Conducts Faculty and Staff Layoffs<\/i>, Above the Law (Aug. 16, 2013, 12:09 PM), http:\/\/abovethelaw.com\/2013\/08\/much-maligned-law-school-conducts-faculty-and-staff-layoffs\/ (referencing extensive
\n layoffs at Thomas Jefferson School of Law).\u00a0 See generally<\/i> Erin Fuchs, The Law School Crisis Could Crush \u2018Stand-Alone\u2019 Schools<\/i>, Bus. Insider (Jan. 31, 2013, 5:33 PM), http:\/\/www.businessinsider.com\/which-law-schools-might-fail-2013-1.<\/p>\n<\/div>\n

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[32] Professor Harper argues that \u201c[f]lawed methodology infects each category\u2014quality assessment, selectively, placement, and resources.\u201d\u00a0 Harper, supra<\/i> note 26, at B7.\u00a0 For example,<\/p>\n<\/div>\n

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[q]uality assessment is the biggest contributor to a law school\u2019s U.S. News ranking, accounting for [forty] percent of its total score.\u00a0 The category itself is a misnomer because it doesn\u2019t reflect quality at all.\u00a0 Rather, using statistically suspect samples of scholars and practicing lawyers, it\u2019s a superficial and unreliable assessment of a school\u2019s reputation.<\/em><\/p>\n

Id.<\/i>\u00a0 At the same time, Professors Black and Caron recognize that<\/p>\n

legal scholars can neither cede to a news magazine the task of measuring our performance, nor pretend that the U.S. News rankings do not matter, nor simply complain about their weaknesses and hope they will improve over time.\u00a0 Instead, we need to produce our own measures that capture attributes that U.S. News misses.\u00a0<\/em><\/p>\n

Bernard S. Black & Paul L. Caron, Ranking Law Schools: Using SSRN to Measure Scholarly Performance<\/i>, 81 Ind. L.J. 83, 84 (2006).\u00a0 For a discussion of U.S. News<\/i>\u2019 rankings methodology, see Sam Flanigan & Robert Morse, Methodology:<\/i> Best Law School Rankings<\/i>, U.S. News & World Rep. (Mar. 11, 2013), http:\/\/www.usnews.com\/education\/best-graduate-schools\/top-law-schools\/articles\/2013\/03\/11\/methodology-best-law-schools-rankings.<\/p>\n

[33] See<\/i> Black & Caron, supra<\/i> note 32, at 84-85 (\u201cThe methods for ranking the scholarly performance of law faculties include reputation surveys . . .[,] publication counts . . .[,] and citation counts . . . .\u00a0 Each offers a useful but partial picture of faculty performance.\u00a0 Our modest claim is that SSRN-based measures can offer a different, also useful, albeit also partial, picture that has its own set of limits and biases, but at the same time can address some of the deficiencies in other measures.\u201d).\u00a0 See generally<\/i> Richard A. Danner et al., The Durham Statement Two Years Later: Open Access in the Law School Journal Environment<\/i>, 103 Law Libr. J. 39 (2011), available at<\/i> http:\/\/scholarship.law.duke.edu\/cgi\/viewcontent.cgi?article=2988&context=faculty_scholarship; James M. Donovan & Carol A. Watson, Citation Advantage of Open Access Legal Scholarship<\/i>, 103 Law Libr. J. 553 (2011), available at<\/i> http:\/\/digitalcommons.law.uga.edu\/cgi\/viewcontent.cgi?article=1026&context=law_lib_artchop.<\/p>\n<\/div>\n

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[34] See,<\/i> e.g.<\/i>, Laurence A. Weinstein, Moving a Battleship with Your Bare Hands: Governing a University System 4, 6 (1993) (comparing, hyperbolically, effecting change in academic institutions to \u201cmoving a battleship with your bare hands\u201d); Neil R. Kestner, The Changing Landscape of Academics as Affected by New Communications Technology<\/i>, in<\/i> The Transition from Paper: Where Are We Going and How Will We Get There? (R. Stephen Berry & Anne Simon Moffat eds., 2001), available at<\/i> https:\/\/www.amacad.org\/content\/publications\/pubContent.aspx?d=562.\u00a0 As an aside, I would like to include a paraphrased joke told to me by a former-state-supreme-court-justice-turned-law-school dean, who shall remain nameless: \u201cIf you took an architecture professor from fifty years ago and placed him in an architecture classroom today, he wouldn\u2019t have the foggiest idea where he is.\u00a0 However, if you took a law professor from the last century and put him at the front of a classroom today, he would be right at home lecturing on Palsgraf<\/i>.\u201d<\/p>\n<\/div>\n

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[35] See<\/i> Bronner, supra <\/i>note 27.<\/p>\n

[36] \u201c[E]xploring whether data about papers posted on the Social Science Research Network (SSRN) can supplement existing methods for ranking law school faculties,\u201d Professors Black and Caron believe that the result will inure to the benefit of the public as well as create a more transparent and objective picture of legal academe.\u00a0 Black & Caron, supra<\/i> note 32, at 84-85.<\/p>\n<\/div>\n

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[37] Especially given that articles are submitted and peer-reviewed virtually free of charge to scholarly journals, these practices lack justification and \u201cseem fundamentally unfair.\u201d \u00a0<\/i>Alissa Centivany, Paper Tigers: Rethinking the Relationship Between Copyright and Scholarly Publishing<\/i>, 17 Mich. Telecomm. & Tech. L. Rev. 385, 385-86 (2011), available at <\/i>http:\/\/www.mttlr.org\/volseventeen\/centivany.pdf; see also Columbia University Senate Endorses Resolution on Open Access and Scholarly Communication<\/i>, Colum. U. Libr.\/Info. Services (Apr. 4, 2005), http:\/\/library.columbia.edu\/news\/libraries\/2005\/20050421_open_access.html (\u201c[T]echnological, legal[,] and economic barriers continue to be erected to obstruct . . . open access\u00a0 . . . .\u201d); Jennifer Howard, U. of California Tries Just Saying No to Rising Journal Costs<\/i>, Chron. Higher Educ. (June 8, 2010), http:\/\/chronicle.com\/article\/U-of-California-Tries-Just\/65823\/.<\/p>\n<\/div>\n

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[38] See <\/i>Centivany, supra<\/i> note 37, at 386; <\/i>Karla Hahn, ALR Statement to Scholarly Publishers on the Global Economic Crisis<\/i>, Res. Libr. Issues, Feb. 2009, at 6, 6-11, available at<\/i> http:\/\/publications.arl.org\/n8218.pdf ; MLA Ad Hoc Comm. on Future of Scholarly Publ\u2019g, The Future of Scholarly Publishing<\/i>, in <\/i>Profession 2002, at 172, 172-75 (Phyllis Franklin ed. 2002).<\/p>\n

[39] See<\/i> Centivany, supra<\/i> note 37, at 411-12.<\/p>\n<\/div>\n

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[40] See<\/i> Jessica Litman, The Economics of Open Access Law Publishing<\/i>, 10 Lewis & Clark L. Rev. 779, 782-83 (2006), available at<\/i> http:\/\/law.lclark.edu\/live\/files\/9593-lcb104litmanpdf.<\/p>\n

[41] A number of proprietary legal publishers operate commercial journals, such as Thomson West\u2019s Intellectual Property Law Review.\u00a0 See generally Intellectual Property Law Review<\/i>, <\/i>Legal Solutions, http:\/\/legalsolutions.thomsonreuters.com\/law-products\/Law-Reviews-and-Journals\/Intellectual-Property-Law-Review\/p\/100027780 (last visited Nov. 8, 2013).\u00a0 Since the days of the early republic, commercial publishing of legal scholarship was a dubious business prospect. For an intriguing history of legal scholarship publication in America, see Ross E. Davies, The Original Law Journals<\/i>, 12 Green Bag 2d 187, 187-90 (2009).<\/p>\n<\/div>\n

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[42] For example, the American Bar Association, the Copyright Society of the U.S.A. and the American Intellectual Property Association also operate their own journals.\u00a0 See generally <\/i>ABA JOURNAL, http:\/\/www.abajournal.com <\/i>(last visited Nov. 8, 2013); Copyright Soc\u2019y U.S.A., http:\/\/www.csusa.org\/?page=Journal (last visited Nov. 8, 2013); AIPLA, http:\/\/www.aipla.org\/learningcenter\/library\/books\/qj\/Pages\/default.aspx (last visited Nov. 8, 2013).<\/p>\n<\/div>\n

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[43] See, e.g.<\/i>, Journal of College and University Law<\/i>, Univ. Notre Dame http:\/\/www3.nd.edu\/~jcul\/ (last visited Nov. 8, 2013).<\/p>\n

[44] See, e.g.<\/i>, J.L. Tech & Pol\u2019y, <\/i>http:\/\/www.illinoisjltp.com\/journal\/ (last visited Nov. 8, 2013); J. Phil. Sci. & L., http:\/\/www.jpsl.org (last visited Nov. 8, 2013).<\/p>\n<\/div>\n

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[45] See<\/i> LexisNexis, 2005 Directory of Law Reviews vii (Michael H. Hoffheimer comp., 2004) (listing American law schools\u2019 law reviews). \u00a0See generally Law Journals: Submissions and Ranking, 2005-2012<\/i>, Wash. & Lee U. Sch. L. Libr., http:\/\/lawlib.wlu.edu\/LJ\/index.aspx (last visited Nov. 8, 2013) (choose journals published in the \u201cUS\u201d; narrow to \u201cstudent-edited\u201d journals).<\/p>\n<\/div>\n

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[46] One such example is the Compact for Open-Access Publishing Equity, committing its signatories to un
\nderwrite the costs associated with \u201cauthor-pays\u201d models of open access scholarly publishing.\u00a0 Compact for Open-Access Publishing Equity<\/i>, OACompact.org, http:\/\/www.oacompact.org\/compact\/ (last visited Nov. 8, 2013).\u00a0 Using this method of open-access publishing, the costs associated with publication are often paid by the author or the institution with which the author is affiliated.\u00a0 See, e.g.<\/i>, Berkeley Research Impact Initiative: Advancing the Impact of UC Berkeley Research<\/i>, U.C. Berkeley Libr., http:\/\/www.lib.berkeley.edu\/brii\/ (last updated Apr. 24, 2013); JH Libraries Open Access Promotion Fund<\/i>, Johns Hopkins Sheridan Libr., http:\/\/guides.library.jhu.edu\/content.php?pid=315747&sid=2802982 (last visited Nov. 8, 2013).<\/p>\n<\/div>\n

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[47] Universities that have instituted such policies include Cambridge neighbors, Harvard University and the Massachusetts Institute of Technology.\u00a0 See MIT Faculty Open Access Policy<\/i>, Scholarly Publ\u2019g MIT Libr., http:\/\/libraries.mit.edu\/scholarly\/mit-open-access\/open-access-at-mit\/mit-open-access-policy\/ (last visited Nov. 8, 2013); Open Access Policies<\/i>, Harv. U. Libr., http:\/\/osc.hul.harvard.edu\/policies (last visited Nov. 8, 2013).<\/p>\n<\/div>\n

\n

[48] See<\/i> Litman, supra<\/i> note 40, at 780 (\u201cNobody, [critics] insist, has yet demonstrated that open access publishing can generate profits, or even support a nonprofit periodical as a going concern.\u201d); see also <\/i>David Tempest, Open Access: Developing New Publishing Models<\/i>, Editor\u2019s Update<\/i>, Elsevier (Mar. 18, 2012), http:\/\/editorsupdate.elsevier.com\/issue-35-march-2012\/a-focus-on-open-access-development-of-new-publishing-models\/ (\u201cBlind adherence to open-access idealism is untenable from an economic perspective, even with an all-digital publishing model.\u201d).<\/p>\n<\/div>\n

\n

[49] See<\/i> Litman, supra<\/i> note 40, at 782-83; see also<\/i> Memorandum on Creative Commons Licenses<\/i>, Ass\u2019n Litteraire et Artistique Internationale (Jan. 22, 2006),\u00a0 http:\/\/www.alai-usa.org\/recent_developments.htm (follow \u201cMemorandum from ALAI\u201d hyperlink) (\u201cCaveat auctor!<\/i>\u00a0 Let the author beware before she chooses!\u00a0 A [Creative Commons] license may be appropriate and desirable for some authors, particularly academics, but, given the dangers the license poses to authors\u2019 prospects for control over and compensation for their works, the decision to license should be made with a full appreciation of the possible consequences.\u201d).<\/p>\n<\/div>\n

\n

[50] See<\/i> Dan Hunter, Walled Gardens<\/i>, 62 Wash. & Lee L. Rev. 607, 623-24 (2005).\u00a0 That being the case, in law schools around the country the tide is only now finally turning so that electronic sources are more widely accepted in legal writing.\u00a0 See<\/i> Ellie Margolis, It\u2019s Time to Embrace the New\u2014Untangling the Uses of Electronic Sources in Legal Writing<\/i>, 23 Alb. L.J. Sci. & Tech. 191, 191-93 (2013).<\/p>\n<\/div>\n

\n

[51] Litman, supra<\/i> note 40, at 783.<\/p>\n<\/div>\n

\n

[52] Id.<\/i> (\u201c[C]opyright is sufficiently irrelevant that legal scholars, the institutions that employ them, and the journals that publish their research tolerate considerable uncertainty about who owns the copyright to the works in question, without engaging in serious efforts to resolve it.\u201d).<\/p>\n<\/div>\n

\n

[53] See id.<\/i><\/p>\n<\/div>\n

\n

[54] <\/i>Centivany, supra<\/i> note 37, at 387; see, e.g.<\/i>, Retain Certain Copyrights<\/i>, U. Cal., http:\/\/osc.universityofcalifornia.edu\/manage\/retain_copyrights.html (last visited Nov. 8, 2013) (\u201cTraditionally[,] . . . publishers require the transfer of the entire bundle of rights as a condition of publication.\u201d).\u00a0 As described above, some universities encourage open-access publishing with explicit policies; however, these policies often waive the requirement to the extent that it conflicts with the terms of a publisher\u2019s copyright transfer agreement.\u00a0 See, e.g.<\/i>, Open Access Policy Guidelines<\/i>, Harv. U. Libr., http:\/\/osc.hul.harvard.edu\/authors\/policy_guide (last visited Nov. 8, 2013); Request a Waiver<\/i>, Harv. U. Libr., http:\/\/osc.hul.harvard.edu\/authors\/waiver (last visited Nov. 8, 2013).<\/p>\n<\/div>\n

\n

[55] See <\/i>Centivany, supra<\/i> note 37, at 387-88.<\/p>\n<\/div>\n

\n

[56] Ushma S. Neill, Publish or Perish, But at What Cost?<\/i>, 118 J. Clinical Investigation 2368 (2008); see, e.g.<\/i>, Diane Harley et al., Assessing the Future Landscape of Scholarly Communication: An Exploration of Faculty Values and Needs in Seven Disciplines ii (2010), available at<\/i> http:\/\/escholarship.org\/uc\/item\/0kr8s78v.pdf (\u201cAdvancement in research universities is often described as a \u2018three-legged stool,\u2019 with a \u2018research\u2019 leg that is far more important than the \u2018teaching\u2019 or \u2018service\u2019 legs. . . . The advice given to pre-tenure scholars was consistent across all fields: focus on publishing in the right venues and avoid spending too much time on public engagement, committee work, writing op-ed pieces, developing websites, blogging, and other non-traditional forms of electronic dissemination (including online course activities).\u201d).\u00a0 But cf.<\/i> Jennifer Howard, Rise of \u2018Altmetrics\u2019 Revives Questions About How to Measure Impact of Research<\/i>, Chron. Higher Educ., June 7, 2013, at A6 (\u201cAdding altmetrics [a portmanteau<\/i> of \u2018alternative metrics\u2019] to CVs and dossiers may not be common yet. But interest in altmetrics is growing fast, as scholars begin to realize that it\u2019s possible to track and share evidence of online impact, and publishers and new start-up companies rush to develop altmetric services to help them document that impact.\u201d); Jennifer Howard, New Metrics Providers Help Keep Libraries in the Research-Tracking Game<\/i>, Chron. Higher Educ., June 7, 2013, at A6 (\u201cAs access to scholarly content online gets easier, librarians feel more pressure to be \u2018central to the research process again,\u2019 and altmetrics can help . . . .\u201d).<\/p>\n<\/div>\n

\n

[57] See <\/i>Harley et al., supra<\/i> note 56.<\/p>\n<\/div>\n

\n

[58] Centivany, supra<\/i> note 37, at 387-88; see also<\/i> Jake New, Journal\u2019s Editors Resign, Citing \u2018Restrictive\u2019 Authors Policy<\/i>, Chron. Higher Educ., Apr. 5, 2013, at A22 (\u201cThe editor and the entire editorial board of the Journal of Library Administration<\/i> have resigned in response to a conflict with the journal\u2019s publisher over an author agreement that they say is \u2018too restrictive and out of step with the expectations of authors.\u2019\u201d).<\/p>\n<\/div>\n

\n

[59] Centivany, supra<\/i> note 37, at 388 n.13 (\u201c[S]ignificant changes to scholarly publishing will require more than a revised understanding of copyright law.\u201d).<\/p>\n<\/div>\n

\n

[60] See<\/i> 1 William F. Patry, Copyright Law and Practice 22-25 (1994).<\/p>\n

[61] U.S. Const., art. I, \u00a7 8, cl. 8.<\/p>\n<\/div>\n

\n

[62] Faculty scholarship practices are far more varied and abstruse than this article (or its traditional treatment by copyright law regimes) allows.\u00a0 See id.<\/i><\/p>\n<\/div>\n

\n

[63] 17 U.S.C. \u00a7 201(a) (2006); cf.<\/i> Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (citing 17 U.S.C. \u00a7 102) (\u201cAs a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.\u201d); Centivany, supra<\/i> note 37, at 389 (\u201cDetermining authorship is typically not difficult because, in most cases, the person who creates the work is also considered the author for purposes of copyright ownership.\u201d).<\/i><\/p>\n<\/div>\n

\n

[64] See <\/i>Centivany, supra<\/i> note 37, at 389.<\/p>\n<\/div>\n

\n

[65] Note that prior to 1976, a common law \u201cteacher exception\u201d existed to exempt teachers from the operation of the works for hire doctrine; however, Congress failed to codify the exception in the 1976 revisions to the Copyright Act, extinguishing the exception provided by the common law rule.\u00a0 Id.<\/i> at 388-89.<\/p>\n

\n

[66] See <\/i>17 U.S.C. \u00a7 201(b).\u00a0 This statute codifies a principle first recognized by the Supreme Court of the United States in Bleistein v. Donaldson Lithographing Co<\/i>.\u00a0 See <\/i>Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 248 (1903); Craig Joyce et al., Copyright Law 272 (8th ed. 2010); see also Cmty. for Creative Non-Violence<\/i>, 490 U.S. at 737 (\u201cClassifying a work as \u2018made for hire\u2019 determines not only the initial ownership of its copyright, but also the copyright\u2019s duration, \u00a7 302(c), and the owners\u2019 renewal rights, \u00a7304(a), termination rights, \u00a7 203(a), and right to import certain goods bearing the copyright, \u00a7 601(b)(1).\u201d); Centivany, supra<\/i> note 37, at 389.<\/i><\/p>\n<\/div>\n

\n

[67] This rule is particularly well acknowledged throughout federal court jurisprudence over the last one hundred twenty-five years.\u00a0 See<\/i> Cmty. for Creative Non-Violence<\/i>, 490 U.S. at 737.\u00a0 S<\/i>ee generally<\/i> Bleistein<\/i>, 188 U.S. at 248; Gill v. United States, 160 U.S. 426 (1896); Colliery Eng\u2019r Co. v. United Correspondence Sch. Co., 94 F. 152, 153 (C.C.S.D.N.Y. 1899); Carte v. Evans, 27 F. 861 (C.C.D. Mass. 1886) .<\/p>\n<\/div>\n

\n

[68] These include works made for use as a contribution to \u201ca collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.\u201d\u00a0 17 U.S.C. \u00a7 101 (2006).<\/p>\n<\/div>\n

\n

[69] Id.<\/i>; see also<\/i> Centivany, supra<\/i> note 37, at 389.<\/p>\n<\/div>\n

\n

[70] The Restatement of Agency explicitly contemplates the employment relationship as well.\u00a0 Compare<\/i> Restatement (Second) of Agency \u00a7 228 (1958) with<\/i> Restatement (Third) of Agency \u00a7 7.07(2)-(3) (2006).<\/p>\n<\/div>\n

\n

[71] In one such case, in which the district court attempted to establish clarity regarding the issue, the legatee of a dancer\u2014who had also been the \u201cemployee\u201d of her eponymous dance school\u2014sought to prove the dancer\u2019s copyright interest in dances she helped create.\u00a0 Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 224 F. Supp. 2d 567, 569-70 (S.D.N.Y. 2002).\u00a0 The Court of Appeals for the Second Circuit, however, had other ideas.\u00a0 See<\/i> Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 380 F.3d 624, 647 (2d Cir. 2004) (affirming in part, reversing in part and vacating in part the decision\u2014and the settling of the rule to the extent it existed\u2014in the lower court).\u00a0 Having said that, the Second Circuit did preserve an important element of works made for hire jurisprudence, concluding that Graham, the dancer, individually owned the dances she created during the first ten years of her employment, because she worked only \u201cone-third of her professional time\u201d and choreography was not within the scope of her employment responsibilities as Program Director.\u00a0 Id.<\/i> at 637-38.\u00a0 However, when Graham signed a new employment contract with the Center, doing so \u201caltered both the nature and extent of her employment from part-time dance instructor to full-time choreographer,\u201d and thus the dances she created during this period of her employment belonged to the Center as works made for hire.\u00a0 Id.<\/i> at 639-41.<\/p>\n<\/div>\n

\n

[72] See Cmty. for Creative Non-Violence<\/i>, 490 U.S. at 751-53.\u00a0 For a concise recitation of the facts of the case, see Centivany, supra<\/i> note 37, at 390-91.<\/p>\n<\/div>\n

\n

In that case, a non-profit organization, the Community for Creative Non-Violence (CCNV), hired James Earl Reid, to create a sculpture dramatizing the plight of the homeless . . . . CCNV provided Reid with a concept and a fairly detailed description of what they wanted, and after negotiating price and cost of materials, Reid created the sculpture. . . . [When] CCNV planned to take the statue on a tour of several cities to raise money for the homeless[,] Reid objected, arguing that the material the statue was cast in rendered it too weak to withstand CCNV\u2019s ambitious itinerary. . . . Reid [then] refused to return the sculpture to CCNV, registered copyright for the sculpture in his name, and planned a more modest tour of his own. CCNV then sued to establish copyright ownership in the sculpture.<\/em><\/p>\n

The central issue before the court was whether the sculpture was a work-for-hire.<\/em><\/p>\n

Id.<\/i>\u00a0 Using the multi-factor test, the Court held that Reid was an independent contractor and not an employee of CCNV.\u00a0 Id.<\/i> at 391-92.<\/p>\n<\/div>\n

\n

[73] In proposing its balancing test, the Court retreated from the \u201ccontrol test,\u201d specifically holding that “employee” should not be interpreted exclusively in terms of whether the hiring party retains the right to control the product, nor in terms of whether the hiring party has actually exercised control over the creation of the work.\u00a0 See<\/i> Cmty. for Creative Non-Violence<\/i>, 490 U.S. at 742-43.<\/p>\n

[74] Id<\/i>. at 751-52.<\/p>\n<\/div>\n

\n

[75] Id.<\/i> at 752.<\/p>\n<\/div>\n

\n

[76] See<\/i> Martha Graham Sch. & Dance Found., Inc.<\/i>, 224 F. Supp. 2d at 592.\u00a0 A clear indicator of the existence of an employment relationship is the fact that universities typically pay their employees salaries, as well as offer employee benefits, and withhold taxes, whereas such an arrangement is uncommon in a hiring party\u2019s relationship with an independent contractor.\u00a0 Centivany, supra<\/i> note 37, at 396.\u00a0 In addition, the<\/p>\n

duration of the relationship between a university and its faculty is typically for one or more academic years with the possibility of renewal, rather than being limited to a short period of time or to a project with a clearly defined scope, as is generally the case with an independent contractor.<\/em><\/p>\n

Id. <\/i>at 397. In the case of tenured faculty, renewal is the presumption.\u00a0 Id.<\/i> at 397 n.77.<\/p>\n

[77] Centivany, supra<\/i> note 37 at 396; see<\/i> Martha Graham Sch. & Dance Found., Inc.<\/i>, 224 F. Supp. 2d at 592.<\/p>\n<\/div>\n

\n

\u00a0[78] Centivany, supra<\/i> note 37, at 397.<\/p>\n<\/div>\n

\n

As part of their employment responsibilities, university faculty are generally expected to carry out duties consisting of some combination of teaching students, conducting research, and partaking in various service-orientated tasks.\u00a0 Works of authorship resulting from these activities, including scholarly books and articles, course materials, and departmental committee reports, are of the kind faculty are employed to perform and thus will typically fall within the scope of employment.<\/em><\/p>\n

Id.<\/i> at 399.<\/p>\n

[79] See<\/i> Hays v. Sony Corp. of Am., 847 F.2d 412, 416 (7th Cir. 1988) (\u201cAlthough [faculty members produce scholarship] as part of their employment responsibilities . . . the . . . assumption . . . was that\u00a0 . . . the right to copyright such writing belonged to the [faculty member] rather than to the . . . university.\u201d), abrogated<\/i> by <\/i>Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990); Weinstein v. Univ. of Ill., 811 F.2d 1091, 1094 (7th Cir. 1987) (\u201c[A] professor . . . who proves a new theorem in the course of his employment will own the copyright to his article containing the proof.\u00a0 This has been the academic tradition since copyright law began.\u201d); see also <\/i>Centivany, supra<\/i> note 37, at 399.\u00a0 It must be noted that Community for Creative Non-Violence<\/i> arguably rejects the assumptions taken by the Seventh Circuit in these cases.<\/p>\n<\/div>\n

\n

[80] See<\/i> Centivany, supra<\/i> note 37, at 400-01.<\/p>\n<\/div>\n

\n

[T]he extent to which a faculty work is actuated by a purpose to serve the university depends to some degree on the category of work in question and the intent of the particular faculty member.
\nSome faculty members may create works that are fully actuated by a purpose to serve the university and would not have created the works but for their employment obligation. However, many faculty members may be internally motivated to conduct research, teach, or participate in service-related activities; they may even feel that they would create works associated with these activities regardless of whether it was their job to do so.<\/em><\/p>\n

Id.<\/i><\/p>\n

[81] See Martha Graham Sch. & Dance Found., Inc.<\/i>, 389 F.3d at 640 (\u201cGraham was a self-motivator, and perhaps she would have choreographed her dances without the salary of Artistic Director, without the Center\u2019s support and encouragement, and without the existence of the Center at all, but all that is beside the point.\u00a0 The fact is that the Center did employ her to do the work, and she did the work in the course of her regular employment with the Center.\u201d); Restatement (Second) of Agency \u00a7 236 (1958) (\u201cConduct may be within the scope of employment, although done in part to serve the purposes of the servant or of a third person.\u201d).<\/p>\n<\/div>\n

\n

[82] Restatement (Second) of Agency \u00a7 235 (1958).\u00a0 \u201cAn act . . . is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which [the employee] is employed.\u201d\u00a0 Id.<\/i><\/p>\n<\/div>\n

\n

[83] Centivany, supra<\/i> note 37, at 401.<\/p>\n<\/div>\n

\n

[84] Id.<\/i> at 398 (citing Restatement (Second) of Agency \u00a7 228 (1958)).<\/p>\n<\/div>\n

\n

[85] Id.<\/i> at 401.<\/p>\n

[86] Rochelle Cooper Dreyfuss, The Creative Employee and the Copyright Act of 1976<\/i>, 54 U. Chi. L. Rev. 590, 591-92 (1987).\u00a0 In her article, Professor Dreyfuss expresses a concern that the works made for hire doctrine hampers employee creativity, especially among university faculty, because of the 1976 Act\u2019s elimination of the teacher exception.\u00a0 Id.<\/i>; cf.<\/i> Centivany, supra<\/i> note 37, at 407-08 (discussing how universities own the copyrights in faculty-created works under the works made for hire doctrine and that policies purporting to transfer these rights, either back to the faculty member or a third party, are unlikely to meet the signed writing requirement under Section 204 of the 1976 Copyright Act).\u00a0 But see<\/i> SPARC, Author Rights: Using the SPARC Author Addendum to Secure Your Rights as the Author of a Journal Article (2006). http:\/\/www.sparc.arl.org\/sites\/default\/files\/SPARC_AuthorRights2006_0.pdf.\u00a0 \u201cAs the author of a work you are the copyright holder unless<\/i> and until<\/i> you transfer the copyright to someone else in a signed agreement\u201d (original emphasis removed).\u00a0 Id.<\/i> at 3. \u00a0However, the ability of a university policy to establish a default position that the university owns all copyright rights in faculty created work is insufficient to meet the signed writing requirement, and this finding has been consistently applied by courts.\u00a0 See, e.g.<\/i>, Foraste v. Brown Univ., 290 F. Supp. 2d 234, 236 (D.R.I. 2003); see also<\/i> Jennifer E. Rothman, The Questionable Use of Custom in Intellectual Property<\/i>, 93 Va. L. Rev. 1899, 1926 (2007).<\/p>\n<\/div>\n

\n

[87] Dreyfuss, supra<\/i> note 86, <\/i>at 638 (\u201cIn exchange for a modest chance of pecuniary gain, the university risks fundamental alterations in the environment it creates for its student body and professional staff.\u201d).<\/p>\n<\/div>\n

\n

[88] Id.<\/i> at 590-91.<\/p>\n<\/div>\n

\n

[89] See<\/i> Centivany, supra<\/i> note 37, at 409-13 (analyzing Professor Dreyfuss\u2019 concerns in light of over two decades of experiences and discussing the implications for the scholarly publishing industry as a whole). \u00a0\u201cDue to its express policies, the university may be estopped from subsequently attempting to enforce its copyrights against the faculty-creator.\u201d Id.<\/i> at 411; see<\/i> 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright \u00a7 13.07(A) (2013). \u00a0A university has a duty to act in agreement with the terms of the contracts between it and its faculty. \u00a0Restatement (Third) of Agency \u00a7 8.13 (2006). \u00a0To contravene this duty would be a serious blunder, not just legally, but perhaps more damningly, for brand and public relations of the university.<\/p>\n<\/div>\n

\n

[90] See <\/i>Centivany, supra<\/i> note 37 at 408.<\/p>\n<\/div>\n

\n

[91] See id.<\/i> at 412-13.<\/p>\n<\/div>\n

\n

[92] Cf. id.<\/i> at 401 (noting that \u201cwhile copyright initially vests in universities under work-for-hire, university policies<\/i> effectively transfer those rights to the faculty-creators\u201d (emphasis added)).<\/p>\n<\/div>\n

\n

[93] See, e.g.<\/i>, <\/i>Jennifer Howard, Open Access Gains Major Support in U. of California\u2019s Systemwide Move<\/i>, Chron. Higher Educ. (Aug. 2, 2013), http:\/\/chronicle.com\/article\/Open-Access-Gains-Major\/140851\/.<\/p>\n<\/div>\n

\n

[T]he University of California\u2019s Academic Senate has adopted an open-access policy that will make research articles freely available to the public through eSchoalrship, California\u2019s open digital repository. . . . More than 175 universities have preceded California in endorsing open access, but the huge research footprint of the California system gives its action extra significance. . . . The new mandate \u2018signals to scholarly publishers that open access, in terms defined by faculty and not by publishers, must be part of any future scholarly-publishing system,\u2019 the statement says.<\/em><\/p>\n

Id.<\/i><\/p>\n

[94] Harvard Law Votes Yes on Open Access<\/i>, Berkman Ctr. for Internet & Soc\u2019y (May 7, 2008), http:\/\/cyber.law.harvard.edu\/node\/4273.<\/p>\n<\/div>\n

\n

[95] The universities represented were: the University of Chicago, Columbia University, Cornell University, Duke University, Georgetown University, Harvard University, New York University, Northwestern University, the University of Pennsylvania, Stanford University, the University of Texas, and Yale University.\u00a0 Perhaps an homage to the Declaration of Independence, the Durham Statement stored on Harvard University\u2019s Berkman Center for Internet and Society website a list of signatories.\u00a0 Durham Statement on Open Access to Legal Scholarship, <\/i>Berkman Ctr. for Internet & Soc\u2019y, http:\/\/cyber.law.harvard.edu\/publications\/durhamstatement (last updated Feb. 1, 2012).<\/p>\n<\/div>\n

\n

[96] Id.<\/i>; see<\/i> Danner et al., supra<\/i> note 33, at 40 (noting that the Durham Statement calls for open access publication and an end to print publication of law journals); Donovan <\/i>& Watson, supra<\/i> note 32, at 554 (discussing the aims of the Durham Statement).<\/p>\n<\/div>\n

\n

[97] Donovan & Watson, supra<\/i> note 33, at 560.<\/p>\n<\/div>\n

\n

[98] Danner et al., supra <\/i>note 33, at 40.\u00a0 This may be because the biggest impact of the Durham Statement manifests itself as organizing principle for the future of its signatory law libraries.\u00a0 See id.<\/i><\/p>\n<\/div>\n

\n

[99] See DOAJ Members<\/i>, Directory Open Access J., http:\/\/www.doaj.org\/doaj?func=loadTempl&templ=members&uiLanguage=en (last visited Nov. 8, 2013) (listing only twenty-four libraries, universities, and research centers in the United States that are registered with the Directory).<\/p>\n<\/div>\n

\n

[100] See <\/i>Danner et al., supra <\/i>note 33, at 41.<\/p>\n<\/div>\n

\n

[101] See id.<\/i> (quoting Richard Edwards & David Shulenburger, The High Cost of Scholarly Journals (And What to Do About It)<\/i>, CHANGE, Nov.\/Dec. 2003, at 10, 13.\u00a0 Danner et al. go on to posit that \u201cin the age of the Internet, a commitment to research and scholarship carries with it a responsibility to circulate one\u2019s work as widely as possible.\u201d\u00a0 Id. <\/i>(citing John Willinsky, The Access Principle xii (2005)).<\/p>\n<\/div>\n

\n

[102] See <\/i>Litman, supra<\/i> note 40, at 791.<\/p>\n<\/div>\n

\n

[103] See<\/i> Paul George et al., The Future Gate to Scholarly Legal Information, AALL SPECTRUM, Apr. 2005, at 1,1, available at http:\/\/www.aallnet.org\/products\/pub_sp050
\n4\/pub_sp0504_MB.pdf.<\/p>\n<\/div>\n

\n

[104] Litman, supra<\/i> note 40, at 791.<\/p>\n<\/div>\n

\n

[105] Id.<\/i>\u00a0 It should be noted that legal research and scholarship require access not only to other legal scholarship, but also to primary sources of law; thus, \u201copen access to legal scholarship must be discussed within the context of electronic access to other types of legal information.\u201d\u00a0 Danner et al., supra<\/i> note 33, at 41.<\/p>\n<\/div>\n

\n

[106] See <\/i>Litman, supra<\/i> note 40, at 791.<\/p>\n<\/div>\n

\n

[107] See id.<\/i> at 792.<\/p>\n<\/div>\n

\n

[108] See id.<\/i> at 792-93.<\/p>\n<\/div>\n

\n

[109] See <\/i>Centivany, supra<\/i> note 37, at 388-89.<\/p>\n<\/div>\n

\n

[110] Litman, supra<\/i> note 40, at 793; see <\/i>Centivany, supra<\/i> note 37, at 414.<\/p>\n<\/div>\n

\n

[111] See <\/i>Memorandum from the John P. Holdren, supra <\/i>note 1, at 1-3, 5, 6; George et al., supra <\/i>note 103, at 2.<\/p>\n<\/div>\n

\n

[112] With the advent of altmetrics, digital media is increasing a feasible source of disseminating knowledge.\u00a0 Thus, the process for peer and tenure review to reflect this modern reality may already be underway.\u00a0 See<\/i> Howard, supra<\/i> note 5, at A6; see also<\/i> Leonard Cassuto, The Rise of the Mini-Monograph<\/i>, Chron. Higher Educ., Aug. 16, 2013, at A31 (\u201cFewer advisers now imagine their graduate students\u2019 dissertations necessarily as books in the making.\u00a0 While the book still remains the absolute standard in many departments, the group that thinks that way is getting smaller.\u201d).<\/p>\n

[113] See <\/i>Centivany, supra<\/i> note 37, at 386, 413.<\/p>\n<\/div>\n

\n

[114] See <\/i>Donovan & Watson, supra <\/i>note 33, at 558-59.<\/p>\n<\/div>\n

\n

[115]\u00a0 U.S. Const., art. I, \u00a7 8, cl. 8.<\/p>\n<\/div>\n

\n

[116] See <\/i>Litman, supra<\/i> note 40, at 781-82.\u00a0 In fact, the original copyright protection, the Statute of Anne, was designed to protect the interests of publishers. Act for the Encouragement of Learning, 1710, 8 Ann., c. 19 (Eng.), available at<\/i> http:\/\/avalon.law.yale.edu\/18th_century\/anne_1710.asp.<\/p>\n

[117] See<\/i>Litman, supra<\/i> note 40, at 784; see also<\/i> Mridu Khullar Relph, In India, Academics Defend Photocopying of Textbooks for Course Packs<\/i>, Chron. Higher Educ., July 15, 2013, at A15 (chronicling the legal battle by the world\u2019s three largest academic publishers\u2014Cambridge University Press, Oxford University Press, and Taylor & Francis\u2014with the University of Delhi and Rameshwari Photocopying Services over the photocopying of short excerpts of books to create curricular course packs for use in university classrooms).\u00a0 See generally<\/i> Centivany, supra<\/i> note 37 (discussing, in greater detail, the extent of the control exercised by publishers in the publication of academic scholarship in America.)<\/p>\n<\/div>\n

\n

[118] \u00a0See <\/i>Memorandum from John P. Holdren, supra <\/i>note 1, at 2-3.<\/p>\n<\/div>\n

\n

[119] \u00a0<\/sup>See <\/i>Centivany, supra<\/i> note 37, at 387 (citing Open Access Policies<\/i>, supra<\/i> note 47).<\/p>\n<\/div>\n

\n

[120] See id.<\/i> at 401.<\/p>\n<\/div>\n

\n

 <\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Download PDF Cite as: Christopher J. Ryan, Jr., Not-So-Open Access to Legal Scholarship: Balancing Stakeholder Interests with Copyright Principles, 20 Rich. J.L. & Tech. 1 (2013), http:\/\/jolt.richmond.edu\/v20i1\/article1.pdf. \u00a0 By Christopher J. Ryan, Jr.* \u00a0 I.\u00a0 Introduction A.\u00a0 Recent Developments in the Case for Open Access to Scholarly Research [1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Last February, John P. Holdren, director […]<\/p>\n","protected":false},"author":4287,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1228],"tags":[],"class_list":["post-1639","post","type-post","status-publish","format-standard","hentry","category-articles"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paMHOZ-qr","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/1639","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/users\/4287"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/comments?post=1639"}],"version-history":[{"count":0,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/1639\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/media?parent=1639"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/categories?post=1639"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/tags?post=1639"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}