“Open Access & Legal Scholarship” Revisited: Part II

In “Open Access & Legal Scholarship” Revisited: Part I, Hannah revisited John Bolan’s “exceptions to the exception” of the lack of open access (OA) in law. She considered the success story of CanLII, commercial repositories, increased interdisciplinarity, and the access to justice movement. In part II we would like to consider some of the factors that have contributed positively to the growth of the “exceptions to the exception” but also note the challenges they raise for the future.

Many experts in the field have examined the broader trends in OA. For a comprehensive review on where Canada stands on the OA publishing front, we suggest reading, “Catching Up on Open Access” by Brian Owens.

This post focuses on three ideas that can be applied to law journals that we have observed in our roles as academic law librarians. First, the role of government support and institutional policies. Second, improved publishing technologies. And the third factor, the complicated rise of hybrid journals with OA options. To begin, we will identify where the leading Canadian law journals stand on Open Access.

Leading Canadian Law Journals and Open Access

There are many metrics to determine top journals, and for the purpose of this post we will use Washington and Lee’s Law Journal Rankings. W&L’s rankings include 59 Canadian journals, although only the top seven are fully ranked based on 2021 data. These seven are: University of Toronto Law Journal, McGill Law Journal, Canadian Journal of Law and Jurisprudence, University of British Columbia Law Review, Osgoode Hall Law Journal, Ottawa Law Review, and Alberta Law Review.

All seven of these journals have embraced OA, but here is where it gets complicated. Two journals, published through academic publishers, offer Gold OA options, meaning that authors can pay an article processing fee for OA publishing. This shifts the cost burden from the subscriber to the author. These journals also offer Green OA options by allowing posting of a pre-publication manuscript in an institutional repository after an embargo period. One of these also offers a subscription threshold that, when passed, converts the journal issue to OA. This novel approach addresses the concerns of subscription decline expressed by associations, by sharing costs between subscribers and the journal. The remaining journals offer Green OA publishing through their journal website, and four made their content available freely through CanLII.

In all cases their content was available through subscription services like Hein, Westlaw, Lexis, or EBSCO allowing for other revenue streams. However, in several cases content on these platforms was delayed or embargoed one to three years. We noted two journals solicited donations toward the publication of the journal. For the author, even Green OA and self-archiving options may include restrictions such as embargoes periods for repositories, pre-print posting limitations, or acknowledgements and link backs to the original journal version. We can say confidently that Canadian law journals are embracing OA, but as we saw, this comes in a variety of forms, as journals experiment with different models of sustainability.

Government and Institutional Support 

When the draft Tri-Council OA policy was shared in 2013 for consultation, the responses were mixed. Although scholarly journals and academic associations were supportive, there was concern about the negative impact on journals, particularly those in the Social Sciences and Humanities, Francophone journals, and smaller journals. There were concerns that Open Access mandates would limit researchers’ choice of where to publish and relegating new or emerging scholars to low-impact and low-quality journals. Concerns were raised about embargo periods, the length of time before published articles can be made available in an open access repository. Association journals often rely heavily on subscription revenue for survival, and many OA models would make them unsustainable. Conversely, article processing charges (APC) by major publishers to allow articles to be published OA would deplete research funds. One program designed to address some of the financial burden of a journal moving to an OA model is the Aid to Scholarly journals.

The Aid to Scholarly Journals grant provided funding for the development of OA publishing with the stated intention of 1) increasing dissemination, discoverability, and readership, 2) improving digital scholarly publishing infrastructure, and 3) encouraging OA models of publishing. While the grant is not specific to law, in 2021 there were eight law and justice journals and six policy journals awarded a grant among the 143 Canadian journals that were successful. The grants are for three years and are up to $30,000 per year, with up to $5,000 per year supplemental funding. This is inadequate to fully support a journal, but helps them move toward an OA model.

Many Canadian universities have institutional Open Access Policies. The Canadian Association of Research Libraries (CARL) developed a toolkit for developing Open Access Policies in 2020 that “encourages institutions to adopt policies that are as broad and ambitious in scope as your community will allow.” Currently only 2 Canadian universities with law schools have an OA Policy. More institutions should develop and implement OA Policies to improve the overall publication of OA research. However, this approach is only one part of the solution. As we have experienced at our own institution, even OA supportive authors may be resistant to policies that limit their perceived publishing options.

Having both institutional and government support for OA will improve dissemination of legal literature and interdisciplinary works. However, as identified by Fanie Pelletier and Elaine Stott in their excellent post about a national OA strategy, it is important to ensure there is unity and coordination across stakeholders to determine priorities, requirements and challenges and establish timelines and funding needs. This would assist in ensuring the consistency in communication and practice of OA publishing for legal literature and all other disciplines.

Improved Technologies

Discussing legal literature specifically, improved technologies include a range of publishing software, such as commercial turnkey institutional repository software and open source, non-commercial software. Commercial turnkey institutional repository software (e.g., bepress) has significant advantages, such as built-in SEO tools that improve discoverability on commonly used search engines and metric tracking to understand and visualize the dissemination and impact of legal literature. Bepress should focus on synchronisation between SSRN and institutional repositories to reduce disaggregation and duplication of openly published articles.

Open-source, non-commercial software (e.g., Public Knowledge Project) has improved the amount of OA legal literature by providing flexible tools that can be implemented by people with a range of skills. Websites hosting journals, such as the McGill Law Journal and the Queen’s Law Journal, highlight another route for OA publishing. These options allow for law school affiliated journals to remain “in-house” and develop policies that further support dissemination such as incremental publishing, indexing across multiple commercial and open platforms (e.g., Westlaw, Lexis, HeinOnline & CanLII), and the ability to forego APCs.

Hosted solutions like BEPress have significant annual subscription costs. They also require on-site management and upkeep. Open-source solutions may seem far less expensive, but then the costs are in onsite equipment and more significant technical and design expertise needed to set-up and manage the system, on top of the publishing demands. In either case, there are costs to publishing a journal that must be paid. Organizations desiring more control over their information assets and research dissemination have many options, besides the traditional models.

Gold OA

“How much?!” Is a common reaction from our law faculty when faced with an APC. Gold OA shifts the cost burden from the reader as subscriber to the author. Costs associated with this option can vary widely depending on the journal and the discipline. One major commercial publisher charges authors as much as $7,000 USD per article depending on the journal, though most APCs are around $3,000. Some institutions have funds to help mitigate the cost, while others, through consortia like the Canadian Research Knowledge Network, have negotiated discounts for their members. These agreements recognize that institutions are paying high subscription fees for these journals, and to charge APCs may be perceived as double dipping at the expense of both their content producers and subscribers. Academic publishers considering the Gold AO route should explore through their libraries what publishing discounts might be available. Why do we consider this a positive contribution to OA? It provides for authors another option besides OA or traditional models when submitting to a journal, especially law journals from international publishers.


We will finish with the story of Michael Ungar, a social work professor at Dalhousie University. Prof. Ungar has the distinction of being Canada’s most highly ranked social work author. He attributes much of his impact to his commitment to OA. But there is a catch: last year he paid his publisher, Oxford University Press, $30,000 and gave up any royalties to make his latest book globally downloadable for free. He says, “I was trying to make an argument and I thought, ‘Well if you really want to jumpstart the conversation, you’re going to have to be bold.’” We applaud Prof. Ungar’s commitment to OA. Not all authors, especially new or historically marginalized researchers, will have the resources to make those sacrifices – nor should they have to. It is the combination of funding supports, new publishing models, and a commitment to OA publishing at the national and institutional levels, that will create opportunities for these authors’ research to be read and shared.

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