Open Access to Legal Scholarship and Copyright Rules: A Law and Technology Perspective

By applying copyright law, contracts, customs and technological standards it is possible to achieve two different kinds of control over digital information. In the first form, control is based on the closeness of information and it is rigid and centralized: see, e.g., the Digital Rights Management systems (DRMs). In the second form, control is based on the openness of information and it is flexible and decentralized: see, e.g., the GNU General Public License (GPL) and the Creative Commons Licenses (CCLs). Those two models of control correspond to two opposite trends in scientific community. On one side, the risk is that a rigid and centralized control (such as the one based on DRMs), shaped by market considerations, invades the sector proper of the scientific community (which, on the contrary, is traditionally inspired by the logic of a flexible and decentralized control, based on customs and informal norms). This would strongly undermine the possibilities of access to scientific knowledge expressed in a digital format. This risk is prominent in the field of legal scholarship, where a vast amount of legal information (also covering the information that is, in theory, in public domain) is governed by rigid and centralized control. On the other side, to counteract such a risk, part of the scientific community is promoting the logic of Open Access (mostly based on free licenses such as the GNU GPL or the CCLs) to scientific knowledge. The Open Access (OA) movement is quickly growing in importance for legal scholarship. Nonetheless, the institutional arrangements and the technological features of OA to legal scholarship are variegated and pose a vast array of problems.