primary legal source materials below the federal level has occasionally sparked controversy.[1] Even at the federal level, a lack of consensus on the normative desirability of open access is evident in the competing bills now pending on the subject of open access to federally funded research.[2]
C. Roles of Universities and Public Institutions
As prodigious producers and consumers of information, public and private universities stand among the most important institutional actors in the networked information infrastructure. Organized action by the academic community would go a long way towards making open access to information the norm rather than the still-developing exception. As of yet, however, progress towards inculcating open-access norms in the academic community has been halting and sporadic. The praiseworthy example shown by the prominent research institutions whose faculties have adopted open-access mandates[3] only highlights the vastly greater number of institutions that have not.
Fostering open access naturally fits with the mission of the modern university along multiple dimensions. Faculty research benefits from a regime in which source materials are freely accessible,
- ↑ See, e.g., Veeck v. Southern Building Code Cong. Int’l, 293 F.3d 791 (5th Cir. 2002) (en banc) (reasoning that copyright protection in text of privately authored model building code evaporated when that code was enacted as positive law by two municipalities); L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719, 809–10 (1989) (reasoning that pagination and chapter or section numbering of primary legal source materials are insufficiently expressive to qualify for copyright protection, and decrying efforts to enforce such protections as “in effect impos[ing] a tax for the use of the law”); Katie Fortney, Ending Copyright Claims in State Primary Legal Materials: Towards an Open Source Legal Operating System, http://ssrn.com/abstract=1347158 (last visited Oct. 20, 2009).
In the spring of 2008, the Office of Legislative Counsel of the State of Oregon, with what might charitably be described as a veneer of legal justification, took the remarkable step of asserting copyright protection over its own official compilation of state statutes, and sent out cease-and-desist letters to organizations that had posted the text of those statutes on the Internet. The state backed down following an outcry in the blogosphere, but similar issues might well recur as the open-access phenomenon continues to disrupt proprietary publication models for legal materials. See James Grimmelmann, Copyright, Technology, and Access to the Law: An Opinionated Primer, at http://james.grimmelmann.net/essays/CopyrightTechnologyAccess (June 19, 2008) (analyzing the Oregon incident); Fortney, supra note 28, at 1–2 (collecting assertions of copyright in statutes from other states); Carl Malamud, Three Revolutions in American Law ¶¶ 49–62 (2009), available at http://www.scribd.com/doc/21818472/Three-Revolutions-in-American-Law.
- ↑ Compare H.R. 801, 111th Cong. (2009) (forbidding federal agencies to condition research funding upon recipients’ archiving of findings in open-access repositories) with S. 1373, 111th Cong. (2009) (encouraging agencies to adopt such policies).
- ↑ See supra notes 14–17 and accompanying text.
