by Magaret Ambrose
You may have already heard that the Cornell Law Library, LIPA, MALLCO, and NELLCO have embarked on a mission to empower the legal scholarly community and to champion open access principles by ensuring community ownership of legal scholarship through LawArXiv.
You can learn more about LawArXiv, its objectives, partnership with the Center for Open Science, and governance structure by visiting LawArXiv.info. You can also visit LawArXiv itself and submit pre-prints, published articles, data sets, and other work products.
This post, however, will focus on the question of why LawArXiv’s mission is an important one. In other words, why is open access important, and why is community ownership of legal scholarship important? These two questions are intertwined, and both speak to an opportunity for law libraries to be proactive, instead of merely reactive. As a profession, we need to stake a claim in the open access market, to ensure that law libraries can negotiate from a position of power instead of weakness, not only to ensure the profession’s relevancy but to also ensure the principles of the profession are preserved for the future.
Why is open access important?
Chances are, anyone reading this already knows why open access is important. Most likely, a person would not be a librarian to begin with if they did not at some level understand how important open access is in theory and in practice. Instead, a more interesting approach to this question is to ask: what does open access represent in terms of a business model, for both for-profit and non-profit entities?
In this sense, there is an old model, and a new model. I want to make the argument that the new model represents both a danger, as well as a singular opportunity for libraries to take back something that until very recently, was thought to have been largely controlled by for-profit companies. To start, under the old model commercial publishers largely have the academic publication market cornered due to the limited resources of academic libraries and academic institutions to support the costs of publishing peer reviewed materials. As recently for example, as 2013 this author mused that the likelihood is small that a major shift in academic publishing from the commercial sector to the academic sector would happen anytime soon.
Even with academic publishing being firmly within the realm of commercial publishers, libraries still have a place. Although the commercial publication model is not perfect, libraries are still able to promote a version of open access through shared community resources. Libraries might not have control over publishing, but they do have some measure of control over how materials are distributed. They are able to keep commercial publishers honest to a certain extent because libraries can stymie the demand side of the equation for commercial publishers by providing varying patron groups access to academic published materials in a way that limits costs to the individual.
The new model under open access, however, is different, and there are different rules. First, it’s important to note how the new model came into being. When I think of the growing trend towards open access, and when I read articles like this, -about a website that allowed free access to pay-walled academic papers and how it was able to re-emerge on the dark web – I can’t help but think of the ‘Life will find a way’ scene in Jurassic Park. As long as commercial for-profit publishers keep their profit margins well in excess of 30%, and charge upwards of $30 per article, there will always be a need to provide access to academic materials that does not break the bank. This might seem comforting to those that work in libraries. Yes the ‘publication’ environment is increasingly online, but libraries are still needed to a) provide access to individuals through shared resources so as to alleviate the costs on the individual and b) provide a layer of discoverability.
By focusing on these two library-added value propositions, you may start to see the problem when you factor in that commercial publishers are increasingly eyeing big data and online user platforms as their profit model. Elsevier most likely did not acquire SSRN with the sole purpose of charging authors and platform users fees (although if there is no viable alternative like LawArXiv, there will be nothing to stop them from doing so). They’ve most likely looked ahead, studied the trends, and know the economy of the future is about data: it’s about mining it, curating it, selling it to others to inform their business operations, advertising opportunities, identify new trends in research and innovations, etc. They don’t need to charge authors and users to turn a profit. Much like Facebook and Google, their main product will not be the publications themselves, or the content on the platform, but the behavior of their users on the platform and all of the data and marketing opportunities that come with it.
Considering that the other side of the new economy is developing online user interfaces to enhance user experiences and anticipate user needs, then what you have is for-profit entities that have swayed the balance of power in their favor. They are chipping away and downright encroaching on the value-added services previously provided by libraries. And they’re doing it in a way that does not reflect on the ethical qualms of manipulating user behavior and mining user data for profit. Commercial publishers are no longer content to have a monopoly on publishing, they now are hungrily staking out their claims on the research process, and the research distribution and dissemination process, for the data that those processes generate. They are very astutely using a type of open access that cleverly masks their profit motive like a wolf in lambskin. If libraries do nothing, if they do not claim a stake in the open access arena, then their negotiating power to protect patrons and the integrity of legal scholarship is greatly weakened. Which bring us to the second question of this post:
Why is community ownership of legal scholarship important?
There are many answers to this question, and some of these answers are complicated and long. A short(ish) answer is that anytime you pass information through a third-party intermediary you add the risk that there will be distortions. If you’ve ever played the game ‘telephone’ or seen Norman Rockwell’s famous painting ‘The Gossips‘ the same principle applies. It is not that commercial publishers are inherently evil and libraries and academia are inherently good, rather it’s that each camp necessarily operates on a different set of values and each has a different set of priorities. When the responsibility of publishing, distributing, and ensuring discoverability of scholarship is placed entirely within the hands of third-party intermediaries, inevitably there will be a distortion as the information is filtered through the values and priorities of commercial-publishers-turned-data-miners and UI developers. These values and priorities can, at times, be diametrically opposed to those of the academic community. When this is the case, librarians will not be able to fulfill their role because they have been cut out of the equation by these same commercial-publishers-turned-data-miners and UI developers. This, in turn, casts a shadow over the entire process and leaves room for the integrity of the scholarly community to be impugned. This is not to say that commercial publishers will necessarily behave unethically, merely that a system that does not check their ability to do so results in a loss of integrity of the academic community.
So… why LawArXiv?
Seen in this light, the mission of LawArXiv is an important one because it is meant to protect the integrity of the legal scholarly community. LawArXiv will only work if those in the legal scholarly community recognize the dangers of the new data-driven economy, as well as the opportunities that true open access can represent. On the one hand, LawArXiv is reactionary in that it is a response to recent developments. On the other hand, LawArXiv is a vehicle for the profession to be proactive by doubling down on some of the core principles of librarianship: protecting patrons and scholarship from profit-driven motivations and ensuring access that is free from high-cost burdens. Projects like LawArXiv may make it possible for law libraries to negotiate from a position of power on behalf of legal scholars and patrons, rather than weakness. If you are interested in this project, have feedback, or have any questions, please email email@example.com.
Please note: the opinions expressed in this post are entirely my own and do not represent LawArXiv, Cornell Law, LIPA, MALLCO, or NELLCO.