23 September 2005

Research and Copyrights

There's an interesting new report on publishing the results of scientific research from the OECD that has some pleasantly disturbing implications for legal research.

"Pleasantly disturbing," you ask? Is this what results from posting before adequate caffeination, you ask? Or is there a stronger mind-altering substance at issue—such as, perhaps, soy-based inks? Well, not really—caffeination wouldn't help this one, and I gave up snorting ink back in the seventies, long before soy-based inks began to dominate periodical printing.

In any event, the report (part of the OECD's digital content initiative) concludes that it's in government's best interest, as a major funder of scientific research, to ensure widespread, inexpensive, not-linked-to-a-particular-publisher dissemination of research. Comparing the results and policies of law reviews and scientific journals sheds some light on the results—not enough light to make the cockroaches scurry away,1 but some light nonetheless.

In the bad old days, when the (obviously wrong, even before Feist) tyranny of West v. Mead allowed West to claim copyright in the page numbers of public documents printed in reporters,2 one had no choice: One used the paid, copyrighted product. Given the rates charged by West and its competitors for access, that was a nontrivial expense added to the cost of legal services; lawyers—and hence their clients—constituted a captive market. The OECD report, in a slightly different context (anybody who claims law is a "science" has no understanding of either law or science), discusses a parallel effect in scientific journals. An annual subscription to Cell runs well into four figures—and that is just one of about five scientific journals that are absolutely essential to anyone studying either cellular biology or biochemistry.3 Fortunately, law reviews are somewhat cheaper… if only due to the decades-long disdain of practitioners for the law reviews.

In any event, the OECD report is worth reading. And the big law reviews should take notice, too.

  1. The "cockroaches" are those journals that claim copyright in law review articles and refuse to bend at all. You know who you are. Leaving aside the dubious legality of the claim—the Copyright Act's definition of "work for hire" doesn't fit for articles not specifically commissioned (that is, the commission exists before the article), and an actual transfer of copyright usually isn't performed properly—I question whether it's in anybody's best interest to take the copyright to law-journal articles.
  2. Which leads to some interesting musings on the pinpoint-citation requirement in the Blue Book as it relates to combinations in restraint of trade.
  3. I can think of no more obvious example of monopoly rents in all of publishing and entertainment. Keep in mind that Cell and its competitors are profitable before accounting for any income due to sale of individual issues or subscriptions just from the advertisements! Fortunately, that's not the case—yet—with law reviews.