Fair Use and Fee

In one of my recent quixotic ventures I tilted at the idea that we should put on line the tables of contents of Canadian law books. This, I reasoned, would allow them to be searched by researchers, and thus mined for the unconsidered trifles they might, and often do, contain. Accordingly I requested permission from various key publishers to get and post copies of their TOCs in digital form. Irwin was great about it, as was Emond Montgomery — whereupon I ran into one of the biggies who said no, fairly unhorsing the whole enterprise.

The reason for refusal went like this:

More liberal access to TOCs of our books will only encourage lawyers to do more of a bad (and we think illegal) thing that they’re doing now, which is sending for and obtaining from certain libraries photocopies of our works or portions thereof.

To which I responded that from a sales point of view a Slaw TOC project could only help publishers. If lawyers persisted in obtaining desired material via library photocopies, they, the publishers, would be no worse off than before a Slaw TOC project. Whereas, if, as I suspected, disovering some juicy tid-bit through the use of a table of contents might just prompt one, two… or maybe even three law firms to order das Ding an sich at the full price, they’d be better off, even if only marginally.

The Publisher remained unimpressed.

Subsequently, with more time to reflect, I thought that they may have reasoned that if we didn’t put up a database of their TOCs, lawyers would feel it (somewhat) more necessary to buy the book to get the TOC in the first place. I decided I was unimpressed.

All of which raises, for me at least, two questions: Is there a good reason for publishers not to make the tables of contents of their books freely available? and Are they right that lawyers obtain photocopied material from libraries and if so is the practice licit?


  1. I am not convinced that copyright exists in a table of contents (TOC). I think it could be argued that the creation of a TOC is merely a mechanical exercise, much in the same way as numbering pages and that no skill is needed to create a TOC. I am not surprised that publishers might take a different point of view but it seems to me their argument is more of a practical one than a legal one.

  2. I hate to tell you this but the publishers do have some right on their side. You have to be a law librarian and then a vendor’s rep to know that I guess. I am sure Ted is right about the ToC. Unfortunately lawyers will copy a book (or anything else) from a local law society library far more often than they will purchase it.

    This is why publishers have so much trouble pricing digital products and other items for sale to a law society library. Some publishers are even beginning to think of refusing to sell to these libraries without a price relating to the numbers of lawyers who belong to the library in each centre.

  3. Pat, I must say that’s not true of the lawyers I work with and have worked with over the course of several years. Since I’m the one who obtains most of their resources for them, I think I can state this with certainty.

    Ted, I’m surprised that the “biggies” don’t see that making the ToCs available, in the way you proposed, can be a great free marketing opportunity for them. When I’m reviewing titles for books for our libraries and am consulting with lawyers, I most certainly make sure to show them the ToCs for each title. It would be great to have them all in one searchable database. Great for me. Great for publishers. Or so I would think.

    It reminds me of the “Google Books” debate (and paranoia). I would guess, too, that “search within the book” on Amazon has improved the likelihood of actual $$ purchases.

  4. You should go ahead with your project for the publishers who jumped in. The others will follow when they will realize that their competitors get something out of it or perhaps, they lose something…

  5. Very thought-provoking discussion! I agree with Dominic Jaar, it would be good to start with those.

    We use the book description and table of contents on a publisher’s website to decide if we want to purchase a book. If that info is not there, we are less likely to purchase the book since we won’t be sure it has what we need. Getting the full book in just to look at the table of contents to see if it has what we need is not only time-consuming, but very expensive if it does not have what we need and I have to ship it back. I’d just rather not go through that whole exercise.

    I must also say that on the copyright front we have drummed in the message so often to the practitioners that we now have a copyright-respecting culture; the lawyers I work with are very conscientious about this. Don’t forget that many of them are authors and write papers and texts as well; many have an appreciation for copyright. Also, with more posting to the web everyone has to be increasingly careful about getting proper permissions. Copyright is far more in the focus all around.

    Isn’t it time publishers pay their clients (lawyers) a little more respect and not treat them so suspiciously?

  6. Well there are precedents: have a look at a law journal TOC front end at http://tarlton.law.utexas.edu/tallons/content_search.html

  7. Okay Simon, your publisher must have been smoking something because the business model for this already exists in a service called IndexMaster and the majors are already represented – see the list at http://www.indexmaster.com/Partpub.html
    Of course this is a subscription only service, and at my old firm we had it accessible on the Intranet, but I never found it terribly useful.

  8. Simon – It’s a good idea – please don’t give up. Irwin Law always posts tables of contents for its books on its website – it is a great marketing tool and undoubtedly leads to sales of books and revenue for the publisher.