I Got 99 Publishing Problems and Copyright Is One of Them: Top Law Reviews

by Raizel Liebler

Editor’s Note: This is a new series based around common copyright and publishing problems. Hopefully, this post will change policies of some of these journals — and therefore the information will be updated at least yearly. The next post in this series will focus on intellectual property journals.

Law review article authors – a large percentage who are more commonly known as law professors – look for guidance regarding the copyright policies of law reviews. Why is this an issue? Many law review authors don’t even pay attention to whether or not they have retained copyright, but librarians and others have been interested in promoting open access. For me, I not only advise others on where to publish in law reviews, I am also an author who publishes in law reviews.

Some have claimed that copyright and law reviews is a complete non-issue, based on the fact that student-edited ABA-accredited law school-based journals are not for-profit, unlike how publishing is done in almost every other field. But law reviews have prevented authors from reusing or republishing their own works. For example, Dan Hunter writes about his publication experience with the California Law Review, that used the assigned copyright in his articles to have those articles pulled from the Social Science Research Network (SSRN). (Dan Hunter, Walled Gardens, 62 Wash. & Lee L. Rev. 607 (2005)). Since then, the California Law Review changed its copyright policy (maybe — see below). Then five years later, there were two law review articles that detailed the difficulties for authors regarding copyright and publishing in law reviews (Benjamin J. Keele, Copyright Provisions in Law Journal Publication Agreements, 102 Law Libr. J. 269 (2010); Michael Widener, Safeguarding the Precious: Counsel on Law Journal Publication Agreements in Digital Times, 28 J. Marshall J. Computer & Info. L. 217 (2010)). There is even a Copyright Experiences with Law Related Publishers wiki that doesn’t appear to have been updated much in the past three years.

Both Benjamin Keele and Dan Hunter have done surveys about the policies of law reviews regarding copyright and open access, in five year increments. But that is not what I’ve done here. Continuing to informing law reviews that open access policies are good and letting authors retain copyright is good only goes so far. Even the Washington and Lee Law Review rankings, which for a while included copyright policy information, gave up keeping track.

Having law reviews include information on their websites regarding copyright will eliminate confusion for authors and others.

Below is information based on what authors, trying to find information about the journal’s copyright policy would find themselves from the all of the websites of top 100 law journals in the United States, as of September 2014. (Ranking based on the Washington and Lee Journal Ranking’s combined 2013 score.) The first tab is in ranked order, the second in alphabetical order.

Law review websites are almost uniformly bad, not just regular bad, but super bad – with difficult to manage navigation and information that is directed to students already on the journal rather than prospective authors. Every website that includes information about copyright is included, though a large percentage do not include any information regarding copyright. (If no information was there, the cell was left blank). Could the chart be more complete if a survey was done or each journal was personally contacted? Yes, but authors are not going to contact a law review to ask beforehand, so I’m not doing so here either.

If you have enough time and space on your law review website to include information about the storied history of your journal, and super specific editorial issues, such as the margins and font required in submissions, you can also include copyright information for prospective authors. To be evenhanded about information presented to the public, I haven’t even included copyright information I know firsthand from publishing in a top 100 journal because they haven’t included that information on their website.

Some law reviews not only mention copyright, but include their entire publishing agreement on their website. Imagine that! The top Law Reviews that include their entire author/journal agreement on their website are all journals at state schools: Berkeley Technology Law Journal, Connecticut Law Review, Michigan Law Review, Minnesota Law Review, U.C. Davis Law Review, and University of Illinois Law Review.

Of the top 100, these are the journals that receive a gold star, by including enough information about copyright to state at least that authors retain copyright:

Rank & Journal
3 Columbia Law Review
8 Michigan Law Review
9 California Law Review (caveat: might not be accurate)
11 Minnesota Law Review
19 Duke Law Journal
24 University of Illinois Law Review
28 U.C. Davis Law Review
33 Emory Law Journal
36 Connecticut Law Review
50 Washington and Lee Law Review
63 Berkeley Technology Law Journal

But there is frequently contradictory information — and it is likely that lower ranked journals published by the same institution do not the same copyright policy.

Take for example, the only school that has two top journals that state on the journal website that the author retains copyright — University of California School of Law. Let’s say you are an author perusing the California Law Review website where you are told:

“Because the California Law Review only retains the copyright to the collective work, it will be necessary, in most cases, to obtain additional permission from the author [to reprint].”

So as a prospective author, you are assured that you will retain copyright, without the need to ask, as the default, right? Perhaps not.

Elsewhere in places that authors wouldn’t look, other policies state otherwise, in regards to all Berkeley journals:

1. The Author Assignment Agreement is the default for most authors.
2. The Author Licensing Agreement is the default for the Berkeley Technology Law Journal, authors in the online journal companions, and authors specifically requesting to retain the copyright.

So, that’s it, right?

Elsewhere, perhaps those publishing in California Law Review might have the same ability to retain copyright — but perhaps not by default:

In an Author Assignment Agreement, the author assigns (transfers) the copyright of his/her article to the UC Regents.  This is the default agreement used in most situations, with the exception of the California Law Review and the Berkeley Technology Law Journal, unless the author specifically requests to retain his/her copyright.

But at least we possible authors, we suggesters of where to publish know that the Berkeley Technology Law Journal has the most permissive authorial copyright retention policy of the Berkeley law journals.

Tired yet? Perhaps it is because law reviews allow for simultaneous submissions, authors writing for law reviews have become so blase about where to publish. Or alternatively, because publishing in a top journal means so much for their careers, they bite at any top apple. But the level of work I’ve put into researching this is beyond the means of authors, and law reviews should put this information up on their websites immediately. Even if authors do not retain copyright, it would be better to let them know, so if they are interested in licensing versus assigning rights in their article, they can know before wasting any time — for them or the journal.