Frye, Ryan and Runge (2016)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Frye, Ryan and Runge (2016)
Title: An Empirical Study of Law Journal Copyright Practices
Author(s): Frye, B., Ryan, C., Runge, F. L.
Year: 2016
Citation: Frye, B. L., Ryan, C. J., & Runge, F. L. (2016). An Empirical Study of Law Journal Copyright Practices. Available at SSRN 2767875.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: To collect descriptive information about the copyright practices of 101 law journals, the study utilized a 23-question ordinal response survey sent to student-edited national law journals with publicly available contact information. The survey instrument captured a variety of law journal’s copyright practices, including journal-author agreements, asking permission to republish protected works, and resources to dealing with copyright issues.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • The survey response period ran from January 2015 to August 2015. Follow-up and reminder correspondence was sent electronically to this same law journal sample in March 2015 and August 2015.
Funder(s):

Abstract

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright Best Practices for Law Journals in order to encourage both open-access publishing and fair use.

Main Results of the Study

  • Responses indicate that the sample is composed mostly of journals that do not classify themselves as IP content journals. That is, 7.52 percent indicate that they exclusively publish IP articles, and another 8.89 percent indicated that they frequently publish IP articles. An overwhelming proportion of journals in the sample indicated that they do publish IP articles but only occasionally (32.61 percent) or rarely (34.78 percent). A significant proportion indicated that they do not publish IP articles (16.30 percent).
  • The sample contains a substantial majority of journals who make their article content available online before or contemporaneous with the publication of an issue (71.43 percent), while 9.89 percent indicated that online publication was not immediate or depended on the circumstances. Last, 17.58 percent of journals in our sample indicated that their policy is not to make journal content publicly available online.
  • In terms general copyright practices on average, they observe that practices of journals in our sample vary greatly with regard to their copyright assignment and public dissemination policies. For instance, while most journals do not ask authors to assign copyright in their articles (48.91 percent), almost as many journals do ask authors to assign copyright in their articles (42.39 percent). Also, most journals in the sample ask authors not to publicly disseminate their article before publication: 21.98 percent of journals prohibit public dissemination before publication, 14.29 percent ask but do not require authors not to publicly disseminate articles before publication, and 21.98 percent of journals will ask authors not to publicly disseminate depending on the circumstances. However, 38.46 percent of journals responding to the survey do not ask authors not to publicly disseminate their work prior to publication.
  • More consensus among journals in the sample emerges around the issues of exclusive publication, republication credits, and third party republication agreements. Most journals (52.22 percent) require authors to sign an exclusive publication agreement. Only 25.56 percent of journals do not ask authors to sign exclusive publication agreements at all, while 20.00 percent do ask authors to sign exclusive publication agreements but--depending on the circumstances--do not require the author’s exclusive publication agreement. Additionally, an overwhelming majority of journals (73.63 percent) require credits upon the republication of the author’s article, and 10.99 percent ask authors for a republication credit but may not require it, leaving just 12.09 percent of journals that do not ask for such a credit. Finally, responses show that journals in the sample tend to grant third parties to republish or otherwise distribute the journals’ articles. While most journals grant third party republication permission with a credit (43.96 percent), others require payment of a licensing fee (8.79 percent), while others yet permit third party republication without restriction (4.40 percent). A significant number of journals indicated that third party republication permission depended on the circumstances (29.67 percent), while 5.49 percent of journals do not allow third party re-publication. Finally, 7.69 percent of journals responded that they did not know whether their journal allowed third party re-publication.
  • The analysis suggests that legacy policies at law journals may create unnecessary barriers to open access as well as impact scholars’ abilities to use certain kinds of materials in their articles. This is evidenced by the significant number of journal respondents indicating that they: (1) require copyright transfers; (2) exclusive copyright agreements; and (3) not permitting the public dissemination of articles by the author prior to publication. Additionally, considerable confusion about when to seek permission from an original author to reproduce a copyrighted work, even for uses which would fall under the coverage of an educational use, is presented by


Policy Implications as Stated By Author

  • This empirical study of the copyright practices of American law journals shows that many law journals have adopted copyright policies that are inconsistent with open access publishing and fair use doctrine. Many law journals stated that their copyright policies require assignment of the copyright in the articles they publish, which may conflict with open access publishing. Many law journals stated that their copyright policies prohibit alternative distribution of articles before or after publication, which directly conflicts with open access publishing. Many law journals stated that their copyright policies require authors to obtain permission to use elements of copyrighted works in ways that are clearly protected by the fair use doctrine. And many law journals provided implausible answers that suggest that they do not understand their own copyright policies.
  • The study suggests that law journals would benefit from the creation and adoption of a “Code of Copyright Best Practices for Law Journals.” Such a code of best practices would help law journals evaluate and improve their copyright policies relating to ownership and fair use. Specifically, it would encourage law journals to adopt copyright policies that are consistent with open access publishing and the fair use doctrine.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
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Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
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Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Green-tick.png
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 101
Level of aggregation: Law journals
Period of material under study: 2015