Open Access to Legal Scholarship: Dropping the Barriers to Discourse and Dialogue

AuthorRichard Danner
PositionRuffy Research Professor of Law, Senior Associate Dean for Information Services, Duke Law School, Durham, N.C.
Pages65-79
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Open Access to Legal Scholarship:
Dropping the Barriers to Discourse and Dialogue
Richard A. Danner
Ruffy Research Professor of Law
Senior Associate Dean for Information Services
Duke Law School, Durham, N.C.
Abstract: This article focuses on the importance of free and open access to legal
scholarship and commentary on the law. It argues that full understanding of authoritative legal
texts require s access to informed co mmentary as well as to the texts of the law themselves, and
that free and open access to legal commentary will facilitate cross-border dialogue and foster
international discou rse in law. The paper discusses the oblig ations of scholars and publishers of
legal commentary to make their work as widely a ccessible as possible. Examples of institution al
and disciplinary repositories for legal scholarship are presented, as are the possible impacts of
such initiatives as the Durham Statement on Open Access to Legal Scholarship.
1. The Free Access to Law Movement
The Declaration on Free Access to Law states that:
Public legal information from all countries and international institutions is part of the common
heritage of humanity. Maximising acces s to this information promotes justice and the rule of
law;
Public legal information is digital commo n property and should be accessible to all on a non-
profit basis and free of charge;
Organisations such as legal information institutes ha ve the right to publish public legal
information and the government bodies that create or control that infor mation should provide
access to it so that it can be published by other parties.
The Declaration was first issued by representatives of legal information institutes (LIIs)
1
from eight a reas of
the world at the 2002 4th International Conference on Law via the Internet in Montreal.
2
The Montreal
Declaration was issued at a time when other groups were making well-publicized statements regarding the
importance of open access
3
to published scholarly and research literature in the sciences and other disciplines.
4
1
A ‘legal information institute’ may be considered to be:
a provider of legal information that is independent of government, and provides free access on a non-
profit basis to multiple sources of essential legal information, including both legislation and case law (or
alternative sources of jurisprudence). ... They are therefore, in essence, aggregators of public legal
information at a national or sometimes regional level (Greenleaf, Chung and Mowbray 2007, 5).
2
The history and development of the movement for free access to law can be found on the web site of the World Legal
Information Institute (WorldLII).
3
The 2002 Budapest Open Access Initiative (BOAI) defines ‘open access’ to scientific and scholarly research in terms of:
free availability on the public internet, permitting any users to read, download, copy, distribute, print,
search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or
use them for any other lawful purpose, without financial, legal, or technical barriers other than those
inseparable from gaining access to the internet itself.
4
The Budapest Open Access Initiative was issued in February 2002, the Bethesda Statement on Open Access Publishing in
June 2003, and the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities in October 2003. For a

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