Nous remercions Hanjo Hamann d’avoir eu la gentillesse de nous proposer une actualisation du post qu’il avait écrit l’année dernière sur l’Open Access en Allemagne. Il constate l’émergence de modifications de comportement notamment d’éditeurs juridiques suite à l’adoption de la loi allemande qui a inspiré l’Article 30 de la loi République numérique. Ce post se fait écho des initiatives prises par le Max Planck Institut pour développer l’Open Access même si elles ne sont pas toujours orientées pour inciter au développement de l’Open Access de la doctrine juridique allemande. L’auteur aussi souligne l’existence d’un premier litige en cours devant les juridictions allemandes qui devrait trancher la question de savoir si une Université peut obliger ses chercheurs à publier leur recherche en Open Access. 

This contribution introduces readers to academic Open Access publishing in German jurisprudence. It does not consider publishing and accessing laws, court decisions or other official documents, which pose complex challenges in their own right. A more comprehensive and detailed summary of available infrastructures was compiled by Verch & Wiesner (2014).

Academic legal publishing in Germany

German legal academics publish mostly in German language, in a variety of formats.

Most common are journal articles, with an estimated 1.300 law journals to choose from (Hamann 2014: 516). Some are aimed mostly at legal practitioners and tend to publish short pieces (up to 25.000 characters) with high frequency (weekly to monthly). Other journals primarily address academics and publish longer articles (up to 80.000 characters) with low frequency (biannually or quarterly). Most journals have a mixed author base and mixed readership, as well as a high degree of subject matter specialization. Journal articles are commonly reviewed only by the journal editor, who is frequently a practicing lawyer if the journal addresses practitioners, or a group of academics for scholarly journals (Archivzeitschriften). Independent or blinded peer-review is the rare exception, practiced by barely a dozen journals. It is not uncommon to submit to multiple journals simultaneously and have articles published within one to six months. Most journals reward contributions with light royalties.

Other than journal articles, legal academics commonly publish books. Professors have a mandatory track record of two monographs (dissertation and habilitation thesis), most publish more. Other prominent formats include edited monographs, text books, conference proceedings, statute commentaries and Festschrifts. Early career monographs are commonly reviewed by established scholars before publication, later books are usually not. Publishing an early career monograph requires a subsidy by its author (Druckkostenzuschuss), for later books publishers may waive the subsidy and even disburse considerable royalties.

In recent years, legal academics have also started to publish blogs, but even reputable posts hardly count towards their academic track record. Print publications remain the standard, with a typical academic career resulting in about 10 ± 5 edited or published books and 400 ± 300 book chapters or journal articles, varying greatly by field of research.

Current extent of Open Access publishing

The publishing market in legal academia has seen increasing consolidation over the last decades. There are now several major publishing groups with many well-known brands, and two dozen or so small traditional publishers in academic niche markets (see, e.g., Hamann 2015). Many journals are published both in print and online in proprietary databases, very few have been retro-digitized, and a considerable proportion is still exclusively available in print. This proportion is even much higher for books.

Few scholars seem to feel an urgent need to publish Open Access, even though library managers have noticed substantial increases in database pricing. There are now about twenty Open Access law journals in Germany and some exceptional cases of Open Access book publishing (e.g., Schweizer 2005). By and large, most of these Open Access pioneers don’t use that moniker and seem to be unaware of existing Open Access infrastructures. Some heightened attention resulted from the OpenCon 2015 conference (see Hamann 2016) and a 2016 conference on “Open Access in the juridical sciences” at Berne University (reports  in GRUR journal and sui-generis.ch), which may be followed up in  2018 (contact openaccess@coll.mpg.de for information).

Around 2016, legal publishers such as Mohr Siebeck and Nomos first started publicly announcing a (limited) production of Open Access titles. Yet institutional backing for Open Access in legal academia is scarce. One of the most vocal advocates of Open Access in Germany has been Max Planck Society (MPG), whose efforts – such as the Berlin Declaration in 2003, the Open Access Ambassadors program, as well as the first German APC offsetting agreement (Springer Compact) – used to be geared towards natural science disciplines and hardly considered the needs of legal researchers. In 2016, however, the tides started turning as the Society’s Digital Library concluded its first cooperation agreement with a German law and humanities publisher (Nomos).

The other major Open access advocate, the German Research Foundation (DFG), provides only seed funding and has little influence on legal academia, where agency funding is rarely necessary. In September 2016, another major institution began backing Open Access: The Federal Ministry of Education and Research has issued a white-paper on Open Access, but its impact particularly on legal publishing has yet to be seen.

One of the most promising mechanisms to support Open Access was a statute enacted in 2015: Sec. 38 (4) of the German Copyright Act, which gives researchers an inalienable right to freely reuse journal articles one year after publication. Yet the statute only applies to publicly funded research in its manuscript version, which inspired criticism by Open Access advocates. Also, one German state that effectively obliged university researchers to exercise this right was openly challenged by none other than one of its universities’ Law Faculty. The jury is still out, as a first hearing at the Baden-Wurttemberg administrative court of justice did not resolve the issue. But the resistance at hand points to widespread skepticism.

Skepticism towards Open Access in Law

From the perspective of authors, resistance against Open Access in legal academia seems to result from a perceived lack of viable Open Access solutions for books as well as a fear of misallocated costs and APC models curtailing research dissemination: “Can and will researchers at one of our notoriously underfunded universities, who do not blow up every research idea with third-party funds, even afford this? Will such a model not create incentives for publishers on the e-journal market to swell the flood of publications even further?” (Zimmermann 2014: 3001).

From the perspective of publishers, one academic with twenty years of experience publishing an Open Access journal (“we were great enthusiasts in 1996”) has criticized a massive lack of targeted government support: He reported that even as a well-established pioneer in the Open Access arena, his journal is nearing a “crossroads” because universities lack the IT infrastructure and manpower needed for sustainable Open Access publishing. With seed funding by research agencies but no available follow-up funds, he argued, maintenance costs (including fixed long-term positions for journal editors) gradually overwhelm the early enthusiasts: “Publishers are cut out, users read for free, government steers clear, but everybody knows that Open Access is more expensive in the long run than print journals. Much of the political praise is pretty phony.”

As of yet, specific cost estimates to compare print and online publication in legal academia are virtually impossible to obtain. Costs for professional copyediting and integrating new media in Open Access articles as well as costs for long-term archiving and security infrastructure are cited as increasing the burden on Open Access journals: “Government has good reasons to say that publishers shouldn’t profit from government-funded research. But if readers are supposed to get everything for free, then government will have to bear all costs excepting our research activities. Crowd-funding can only work where a professor takes on a journal as a life commitment, her baby, for which she establishes and runs associations, publishes in blogs, etc. – while giving up research.”

Besides such expertise-based assessments, quite a few researchers also echo fundamentalist criticisms that have gained traction in Germany especially following the Heidelberg Appeal in 2009.

Perspectives for Open Access in German legal academia

Concluding from two pertinent conferences and previous (albeit rare) public statements, institutional conditions will have to change significantly for Open Access to play a major role in German legal academia. Neither incentives for open publication nor disincentives for print publication have reached threshold levels to inspire change. The particular challenges facing a discipline where books are a major medium of intellectual discourse, where academics publish alongside practitioners, where journal articles are frequent and elaborate and where traditional publishers are among the few gatekeepers entrusted with reducing the amount of research output and ensuring its quality, have not yet been addressed. Some momentum for change may develop from interdisciplinary legal scholarship which increasingly relies on big data and the free availability of legal text, but research groups, e.g., for legal corpus linguistics in Germany or in Switzerland, are yet outside the mainstream of dogmatic legal thinking.

This article was first published on the 25 October 2016, updated on the 25 October 2017.

The author Hanjo Hamann is Senior Research Fellow at the Max Planck Institute for Research on Collective Goods in Bonn (Germany), Open Access Ambassador of the Max Planck Society and manages an interdisciplinary Open Access journal. I thank law professors Prof. Christoph Engel, Prof. Andreas Engert and Prof. Niels Petersen for critically reading an earlier draft.