The Economics of Open Access Law Publishing

The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. The role of copyright in the dissemination of scholarly research is in many ways curious, since neither authors nor the entities who compensate them for their authorship are motivated by the incentives supplied by the copyright system. Rather, copyright is a bribe to entice professional publishers and printers to reproduce and distribute scholarly works. As technology has spawned new methods of restricting access to works, and copyright law has enhanced copyright owners' rights to do so, the publishers of scholarly journals have begun to experiment with subscription models that charge for access by the article, the viewer, or the year. Copyright may have been a cheap bribe when paper was expensive, but it has arguably distorted the scholarly publishing system in ways that undermine the enterprise of scholarship. Recently, we've seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they've attacked the viability of the open-access business model. If we are examining the economics of open access publishing, we shouldn't limit ourselves to the question whether open access journals have fielded a business model that would allow them to ape conventional journals in the information marketplace. We should be taking a broader look at who is paying what money (and comparable incentives) to whom, for what activity, and to what end. Are either conventional or open-access journals likely to deliver what they're being paid for? Law journal publishing is one of the easiest cases for open access publishing. Law scholarship relies on few commercial publishers. The majority of law journals depend on unpaid students to undertake the selection and copy editing of articles. Nobody who participates in any way in the law journal article research, writing, selecting, editing and publication process does so because of copyright incentives. Indeed, copyright 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. At the same time, the first copy cost of law reviews is heavily subsidized by the academy to an extent that dwarfs both the mailing and printing costs that make up law journals' chief budgeted expenditures and the subscription and royalty payments that account for their chief budgeted revenues. That subsidy, I argue, is an investment in the production and dissemination of legal scholarship, whose value is unambiguously enhanced by open access publishing. In part I of the paper I give a brief sketch of the slow growth of open access publishing in legal research. In part II, I look at the conventional budget of a student-edited law journal, which excludes all of the costs involved in generating the first copy of any issue, and suggest that we cannot make an intelligent assessment of the economics of open access law publishing unless we account for input costs, like the first copy cost, that conventional analysis ignores. In part III, I develop a constructive first copy cost based on assumptions about the material included in a typical issue of the law journal, and draw inferences based on comparing the expenses involved in the first copy, and the entities who pay them, with the official law journal budget. In part IV, I examine the implications of my argument for open access law publishing. In part V, I argue that the conclusions that flow from my analysis apply to non-legal publishing as well. This paper was published in 2006 in volume 10 of the Lewis & Clark Law Review.