Open Access at Duke Law
Duke Law's long-standing commitment to open access includes making student, faculty scholarship freely available online.
Oct. 19, 2009 — The Duke Law Scholarship Repository, launching online this week in partnership with BePress' Digital Commons, provides free, full-text access to more than 3,000 scholarly articles written by Duke Law faculty or published in Duke Law journals.
The repository offers a fresh presentation of Duke Law scholarship, but the idea of freely accessible legal scholarship and a commitment to open access to information has deep roots in both practice and theory at Duke Law School.
Under the leadership of Richard Danner, Duke Law's senior associate dean for information services and Archibald C. and Frances Fulk Rufty Research Professor of Law, the Law School became the first in the country to make all the articles published in its law journals — including back issues — freely accessible online in 1998. In addition, unlike most other law reviews, Duke's journals explicitly allow authors to post articles published in the journals without restriction on freely-accessible third party web sites, as well as on Internet sites under their own control.
By making scholarship as easily and widely accessible as possible, Duke does a service to the the authors who publish in its journals, says James Boyle, William Neal Reynolds Professor of Law. "Imagine spending a year writing an article and discovering after you finished it that only someone with a sophisticated library or an expensive subscription could read it," he says. Duke's commitment to open access increases readership for authors, which include faculty from other schools as well as student scholars, and can contribute to higher citations for Duke-published work. "It's a huge benefit to both our students and to faculty authors," Boyle says.
In 2005, Duke Law furthered its commitment to open access by establishing an online archive of faculty scholarship, providing free access to the majority of articles published by Duke Law faculty. The contents of that archive are now the foundation of the Duke Law Scholarship Repository, which ultimately will include the text of lectures delivered at Duke Law, webcasts from scholarly presentations and conferences, publications of Duke Law's research centers, Duke Law student works, and more.
A moral obligation
Danner is widely recognized for pioneering the use of the Internet to make legal scholarship available to all. His efforts, he says, are inspired in part by the work of the Law School's intellectual property faculty as well as his own strongly held belief that law schools have a moral obligation to share the information and ideas that sustain legal systems and democratic ideals.
"Open access makes it possible for the scientist, the lawyer in some underdeveloped part of the world without resources, to begin participating in the intellectual dialogue," Danner says. "I do believe there is a moral obligation to disseminate knowledge as widely as possible."
In February, Danner was one of 12 library directors from the country's top university law libraries who signed a proposal for law schools to stop publishing law journals in print form. Conceived when the group met at Duke last November for the dedication of the J. Michael Goodson Law Library, the "Durham Statement on Open Access to Legal Scholarship" calls for law schools to rely on electronic publication in stable, open, digital formats.
The statement was motivated in part, Danner says, by increasing financial constraints on law schools and law libraries and changing research norms, as well as scholars' interest in making — and their obligation to make — their scholarship widely available. The last point is one Danner explores in his article "Applying the Access Principle in Law: The Responsibilities of the Legal Scholar," published in the International Journal of Legal Education (2007) and available, of course, in the Duke Law Scholarship Repository.
"In law there has been for a long time, both in the U.S. and internationally, an effort to make the primary sources of law — statutes, cases and things like that — freely available one way or another so that you didn't have to buy the books or you didn't have to subscribe to Lexis and Westlaw and other expensive databases," Danner says. "But the organizations that do that have typically not had the resources, or had as their primary interest, dealing with secondary sources, with legal scholarship, with commentary about the law. And you can make an argument that it's all well and good to have the text of a statute, but unless you're versed in some ideas about interpretation, you can't make very good use of that."
Indeed, supporters of open access argue that the development of knowledge is an iterative process, and that restrictions on access to information and ideas can inhibit, if not prohibit, advances in knowledge, science, and the arts.
Faculty at the forefront
Duke Law's intellectual property faculty — widely recognized as one of the strongest in the country — is at the forefront of research that analyzes the impact of laws that restrict access to and use of information, ideas, and products.
David Lange is a pioneer of intellectual property and copyright law and a co-author of the leading casebook on intellectual property. Jerome Reichman, the Bunyan S. Womble Professor of Law, has conducted pathbreaking research on the problems that developing countries face in implementing World Trade Organization standards for the protection of intellectual property. Arti Rai, the Elvin R. Latty Professor of Law, has studied the effects of intellectual property law on biotechnology and the development of life-saving drugs, as well as innovation in areas such as green technology and software development. And Laurence R. Helfer, the Harry R. Chadwick, Sr. Professor of Law, studies the intersection of intellectual property and human rights, particularly the efficacy and enforcement of intellectual property law in developing countries.
Boyle, co-founder of Duke Law's Center for the Study of the Public Domain, is a leader in the open access movement: he was a founding director of Creative Commons, a nonprofit organization that provides licenses that let individual artists choose how to share their work freely; is a co-founder of Science Commons, which aims to expand the Creative Commons mission into the realm of scientific and technical data; and is a co-founder of ccLearn, which works to promote the development of open educational resources.
"A lot of my scholarship has been about the value of the public domain and in particular the value of having this commons of material for all of us to draw on," says Boyle, whose latest book, The Public Domain: Enclosing the Commons of the Mind, discusses the effects of legal restrictions on access to art and culture, as well as scholarly research. "Shakespeare, Mozart, Einstein, the novel form, the sonnet form — these are all things on which we build our culture. You don't need to ask permission to build on any of them. But as intellectual property restrictions expand, we are finding it harder and harder to draw on the public domain the way we used to."
The benefit of open access to research lies in the possibilities for innovation, Boyle says.
"We have all kinds of possibilities where, if copyright were shorter or less extensive, we would be able to not just read or copy or put online, but also to link things together," he says. "We have ways of digitally mining texts that we could never have imagined before. It means that, for most of human history, the map of knowledge that you developed as a scholar was basically your accumulated knowledge of information and the links between information sources, and there was a limit — processing was analog. Now, if we have that access and we pair it with new technology, we can do things we never did before."
Boyle cites as a triumph of open access the National Institutes of Health (NIH) requirement that federally funded research be made publicly available online within a year of publication.
"What that means is that the public not only has passive access to information, so that you can search for information on the rheumatoid arthritis that bothers your grandmother without paying 25 bucks for each article, but also active access," he says. "A cancer researcher can search for research on 'inflammation' in articles spanning every type of medical specialty. He can build a massive database of these articles, cross-index them, finding connections that no one else has seen.
"The point is that we can't imagine — just as we couldn't have imagined Google maps in 1995 — what can be done. Open access opens the door."