A reputable legal researcher recently suggested to the chief executive officer of a legal publishing company that the day was coming soon when his company would be offering its secondary content for free on a kindle. Needless to say, the CEO’s response was “not any time soon”. As an aside, he noted that it is becoming increasingly difficult to pay authors to write secondary content even now. He was frustrated by the growing market expectation that everything, including secondary content, would soon be available for free.
There is a growing assumption in the market that “someone else”, other than the user, will pay the author and publisher for providing access to secondary content. This is not a good thing. There is no “someone else”.
Contributors to SLAW have regularly commented on the importance of secondary resources in legal research. David Whelan’s recent post states clearly that “secondary resources are always the best way to save – time, that is.” In the practice of law, saving time means saving money. He suggests that the most effective way to research legal issues is to buy print copies of the most heavily used books and use online to update your research.
However, much more can be achieved by using secondary resources than just saving time and money. As Angela Swan has noted many times, the use of secondary resources such as legal treatises and monographs as the starting point in legal research also improves the quality of the research, the intelligence of the arguments presented in court, and the standard of the decisions issued by the court.
It is ironic that at the very time when the glut of case law in the system should be making legal treatises and monographs the linch pin of cost effective and high quality legal research, the number of purchasers of new secondary works and new editions of secondary works is declining.
A key reason for the overall decline in purchasing secondary resources is the response of the market to budget restraints. There is a need to make choices when purchasing legal information. It is not an easy thing to do. The selection process has been made all the more difficult by the reluctance of institutional libraries in particular to recognize that their “investments” in comprehensive hard copy collections of legislation, law reports and law reviews have proven to be bad long term investments. All of this content is easily accessible online, at a reasonable cost if not for free, making purchases of the print versions an expensive and unnecessary exercise in duplication.
At the same time, decisions have been made to forgo purchases of new treatises and new editions of treatises on Canadian, American and British law. At one time, libraries prided themselves on being able to provide access to the major treatises of other common law countries as well as access to all Canadian treatises and monographs. This practice has fallen by the way side as the budgets for such acquisitions have been limited to the dollars remaining in the budget after spending on updating existing collections. This just doesn’t make sense in terms of being able to provide researchers with as much information as is possible, in the format that makes the most sense.
The business model for authoring and publishing secondary content
The business of authoring and publishing secondary content in Canada is a fragile thing. The primary cost of creating secondary content is borne by the author. Limited funding is sometimes available for research assistance but not to pay the author.
It is a fact that no Canadian legal publisher can afford to pay an author his or her hourly rate for the time that must be spent creating a new legal treatise or monograph. Remuneration is generally in the form of a royalty based on sales. More important is the indirect benefit in the form of the growth in reputation of the author that comes from being published by a recognized publishing house and by any employment that results from the publicity associated with the publication. A handful of publications, primarily in loose leaf formats, generate decent royalties on an ongoing basis for updates, but nothing really covers the full cost of creating something substantial and new.
Like the author, the publisher has limited expectations. In current economic conditions, the break even point is as important a question as the profit margin in considering a publishing proposal. In making this assessment, commercial legal publishers rely on data compiled from sales of similar works in prior years. Hence the significance of purchasing decisions by institutional purchasers on the authoring and publishing of secondary content. The decisions institutional libraries make today influence the decisions that publishers make tomorrow.
It is also a fact that there is, as yet, no established business model for the development of secondary content in the online environment. Publishers are simply migrating print works to an online format as part of online specialty products. No significant new work has been published that was intended exclusively or primarily for the online market and none likely will until new business models have developed that sustain such efforts.
Secondary content published in loose-leaf formats
Another problem is the issue of secondary content published in a loose-leaf format. Looose-leaf services have fallen out of favour for many reasons, from the cost of the updates, to filing time, to the uncertainty the content of the binder. As a result, law libraries everywhere have become morgues for secondary content published in a loose-leaf format. “Discontinued Service” labels appear prominently throughout many library collections, damaging both the image and reputations of institutional libraries and publishers alike.
The decision by a publisher to publish secondary content as a loose leaf is based on a number of factors, including the frequency of changes in the specific subject area, and on the revenue that a publisher can expect to generate by publishing regular updates to the base work, but primarily upon the importance of the work in the practice of law. A decision by a customer to discontinue updating a loose leaf service doesn’t lessen or eliminate the need for access to the content.
Changes in approach
For secondary content in the form of legal treatises and monographs to continue to be authored and published in smaller markets like Canada, changes in approach are required by both the publisher and institutional purchasers. Some ideas that might help include the following:
- Legal publishers need to discontinue the practice of adding existing secondary content to online services without additional charges as a condition of renewing online subscriptions. It reinforces the idea that secondary content is of little value and that it will ultimately be free.
- Legal publishers need to be more inventive in offering pricing options to customers. Why not introduce once a year annual updating of the entire contents of a loose leaf service for a fixed price? For that matter, why not offer to update all of an institutional library’s looseleaf holdings on an annual or biannual basis for a fixed price? Why not do the same on an annual basis for new hard bound titles?
- Institutional libraries need to re-build their collections of secondary content in print, hopefully with the support of publishers in the form of new deals for updating entire collections of loose leaf services, but also by making better choices.
Most importantly, the market has to accept that not everything will be free and be prepared to pay a fair price for secondary content in print. New business models will be developed, likely using a kindle or a tablet, but the secondary content accessible through them will not be free.