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Open-Source Law Review Publication Contracts

posted by Adam Levitin

I know this isn't standard Credit Slips fare and will probably be of little interest to most readers, but it's of reasonable concern to academic readers:  the lack of standardization among law review publication contracts. 

I've encountered only a limited number of publication contracts, but it is already apparent to me that there is major variation among these contracts, some of which are drafted well, and some of which are rank amateur works.  Some are conscience of the need to address author's desire to post works to electronic distribution sites like SSRN and BePress, others are not.  Some transfer the copyright to the law review, others are merely a publication license, exclusive for some period of time (or not).  My sense is that some of the agreements were simply drafted by law students (who have little-to-no experience in contract drafting), while others went through a university's general counsel's office and conform with a university-wide standard. 

Now in 99% of cases, the contents of the law review publication contract don't matter--they will simply never come up, and when issues do arise (I had to deal with this problem this year), the langauge of the contract is irrelevant, as no one is going to sue.  Instead, the issue is all about relative bargaining power between the journal and the author.  Indeed, this raises the question of why a formal written publication agreement is necessary at all; two journals I've dealt with have not had a formal written agreement. 

Still, the law review publication contract strikes me as a case where there should be a standard form contract, maybe with some check-the-box options.  It's hard to imagine that either law reviews or authors want tremendous variation in the contract. 

Maybe some enterprising law professor (not me) will draft such a contract for the good of the profession.  Consider this a call for an open-source standard law-review publication contract.

Comments

I love the contracts where they give you a license to use your own work, often only under certain limited circumstances.

When questioned about that, the seminar sponsor or publication's response is usually a gush of praise for how broad the license you are going to receive really is.

My response is usually - great! Then you'll be happy with that same licensing language being what you get, while I retain all other rights to my work.

Too many law reviews, too few articles worth publishing.

One reason for written contracts: The Copyright Act requires it. An oral (or other unsigned) agreement to transfer any portion of a copyright -- including a simple nonexclusive license to publish -- is explicitly invalid. It nonetheless may allow a publisher to rely on an "implicit license", but that implicit license will be extremely narrow... and would not extend to making the work available through Wexis (under Tasini).

But there's no excuse for the copyright grabs and so on that are all too typical of these contracts. They are relics of the 1909 Copyright Act... which was superseded at the same time as the 1898 Bankruptcy Act.

See http://commons.umlaw.net/index.php?title=Model_copyright_agreements for resources re: past efforts to standardize contracts and wiki focusing on author experiences with law journal publications. I have been looking at a lot of law review publication agreements over the past year. They do vary widely, although different journals have different needs that must be addressed. It is heartening to see an increasing number of open access journals adopting Creative Commons-type agreements. See model related to Open Access Law Program http://sciencecommons.org/projects/publishing/oalaw/oalawpublication/ See also SPARC website re: author rights. http://www.arl.org/sparc/author/
There is always room for negotiation. Sometimes authors do not feel empowered, or they do not have the time to question the standard agreements. If the journal balks, it is up to you how badly you want to publish in that journal.

Many journals have told me that they are in the throes of revisiting their standard agreements (we are in the midst of revising our own at my school), but I think that the "temporary" nature of the editorial boards of student-edited journals make it harder for the revisions to come to fruition.

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