Secondary Content – Who Pays? Someone Else of Course.

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”.

Good choices

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.

Bad choices

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.


  1. What about print in time as a solution to the loose leaf issue?

  2. Gary,

    You wrote:

    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.

    Really? I’d have assumed the growth in reputation comes from the quality of the content of the material, the identity of the publisher being secondary so long as the preparation of the paper or other media is of appropriately high quality. Desktop self-publishing is a very practical route if one is so inclined.

    As for any other form of indirect benefit, in my experience it’s more likely to be a financial burden. There are the CLE expectations – make that obligations – if one’s book becomes a common enough resource. Some of us don’t have articling student or younger associate lawyers to ghost-write the CLE papers for us, and wouldn’t ask them to do it even if we did.

    And, as to any other form of “indirect benefit”, it’s also more a burden, at least if one isn’t an academic lawyer. You’d be surprised – or maybe you wouldn’t – at the number of “cold” call or email thanks in advance” requests I’ve got over the years from lawyers who aren’t calling in favours where there isn’t going to be any form of quid pro quo. Nonetheless, they get answered, of course, in some form. The number far exceeds the “we’ll pay you for you opinion” requests. Sound familiar?

    Then there’s always the “will you do another edition” issue.

    Increasing employment prospects? Maybe in the culture of the bigger law firms, or provided one writes about something that is necessarily nuts and bolts. But, outside of that? Have you heard the phrase “academic” (with an implicit “too” if it’s not explicit) when applied to a practitioner? It’s not meant as a compliment.

    Hmmm … the reCaptcha is “richman are”. Not bl**dy likely.


    Addendum – if you are who I think you are, maybe the history of Apportionment would have been different if I’d ended up with Carswell, not CLB. I’ve no reason to assume it would or wouldn’t have, but who knows. That there was never a 2nd edition or, formally, an update was my doing, not CLB’s.


  3. As an institutional purchaser of a lot of secondary content, I’m not sure I’d agree that the challenges are as simple – or as easily solved – as the post suggests. In addition to the direct and indirect costs for looseleaf maintenance (can’t we just kill the format?), many libraries have the added challenge of how to get a physical information source into the virtual hands of our user base. Keeping print current for a non-existent physical audience makes less sense than cancelling it. Cost is only one of many considerations.

    I would rather see the secondary content finally stay in its native, electronic format. If the format’s presentation was rethought and not a mere regurgitated analog of the print, AND the publishers could help me see that the usage justified additional licensing fees, there’d be no expectation of secondary content being “free”. I’d be glad to get that content in front of more researchers.

    There’s no question that this presents difficult challenges for publishers, especially in “small” markets. But if authors are primarily publishing for psychic benefits, secondary content is as likely to move to online, authoritative blogs as it is to battle to get into paper looseleafs. Perhaps publishers should be licensing that content (Slaw, the Looseleaf) instead of creating new works. They could provide electronic comprehensiveness instead of artifacts.

    Electronic secondary content will be the most important content for the publishers to sell as they build out their workflow tools. Questionable added value and selectivity to commodity content (law reports and legislation) has a diminishing future. If publishers could figure out how to better display commentary and help me to measure usage, it would be easier to stomach paying for it.

  4. Thanks Gary for your post. A few comments:

    1) I agree re importance of treatises.

    2) Although we continue to purchase most Sweet & Maxwell treatises (despite their cost), I am finding less of a need to rely on them as some of the Canadian titles develop more mature content. The frustrating thing is the increasingly rapid rate at which Sweet & Maxwell is issuing new editions (although I don’t think anyone has broken Angela’s record for a second edition – was that a second edition after one year, Angela? [we of course happily bought multiple copies of the second edition . . . .]).

    3) The difficulty in accurately estimating the cost of looseleaf updates was particularly difficult this year for us. The reality, therefore, is that we will likely cancel some looseleaf subscriptions and look at getting new content on those every other year. Part of the issue is not the cost per se but the difficulty in knowing what the total costs will be.

    4) I think I may have been the anonymous researcher quoted at the start of your post (although I do not claim to be reputable). If so, I am glad my comment sparked your post; however, what I think I mean to say was a comment more on Kindles and e-book reader than their content. What I meant to say is that the cost of the hardware will be so cheap that publishers will be giving away the hardware with their content bundled (for the price of the content) – i.e., only the hardware will be free).

    5) I was fortunate to work with Lloyd Houlden after his retirement from the Bench. His advice then was that Canadian legal publishers are keen for authors to submit proposals for books, especially on topics that have not been written on (hence my first, The Law of Independent Legal Advice, which Carswell was kind enough to publish, despite the small market for such a title). He warned me – correctly – that very few authors of Canadian-published legal books will make much money but that it was important for a young lawyer (as I was then) to get one’s name out. In addition, my experience with Irwin Law with my legal research and writing book was extremely positive, both from their quality control over the content and their willingness to market the title in law schools, etc.

  5. Is it redundant for me to add my voice to the call for secondary content in electronic formats? The publishing industry seems to have figured out how to make money from distributing e-books. Users are increasingly accepting of digital content. I would sooner put my budget dollars into well-written, thoughtful secondary literature and making sure it gets to my users.

    Another request: please don’t tie the format to a particular device. I know that the publishing community is entranced by the Kindle right now, but with 30 or so devices currently on the market and more due to arrive in the next six months, it seems risky to me to limit the offering to one format. I’d also suggest that if you are dealing with material that is heavily illustrated, or which offers a lot of charts and tables – WAIT. The existing technology will mangle the graphics, and full-colour, illustration-friendly technologies are due to launch very soon.

    BTW – I think that a selected collection of the best of SLAW might be worth thinking about!

  6. As an author who has seen her book presented on-line, I think that there is more involved than just posting an electronic version of a text to a place where it can be read by those with a computer.

    First, the chunks of my book on-line, i.e., the parts of the book that one can review after a search, are based on the divisions that I made in the text. Some of these, probably the majority, are short; a few are quite long. They were drafted, not as individual chunks, but as parts of a developing presentation and analysis; they will often be inadequate as an analysis if what comes next cannot be read with them. It is the ability of a reader of a book to flip from page to page that represents the potential contribution of a treatise to legal research. Having the text cut up into separate chunks — separate in the sense that in the on-line version one cannot go seamlessly from the end of one to the beginning of the other, as one can turn a page — creates at least the risk that the author’s argument will not be fully appreciated.

    Second, while there are hot links from the footnote reference in the text to the footnote and back, there are no hot links between the cross-references or, a fortiori, between chunks and chapters. My concern for this feature of on-line reading is that it makes it much harder for both the author and the reader to conceive (in my case) the law of contracts in the multi-dimensional way that I believe is both accurate and useful. Reading stuff on-line offers only a one-dimensional understanding. A Kindle may do for a novel; I’m not so sure about it for a treatise.

    Third, navigating in this environment will be both cumbersome and, since cumbersome searching is usually expensive, costly. If the effects of the two features I have noted are to be overcome, reading will take more time and be far more awkward than would be the case if one had a copy of the book in one’s hand.

    I have been told that the index will soon be available on-line as well. I do not know whether there will be a link from an index entry to the text. If not, the value of the index will be compromised.

    In light of the features of the on-line text that I have noted, I now face the prospect of having to re-draft my text radically when I prepare the third edition. (Ted, it was two years between first and second editions, with a supplement after one; the new edition is a couple of years away. Thanks for buying all those copies!) The dilemma I face is that the physical text, written to be viewed on-line, will not be very attractive. The long, discursive footnotes that I sometimes use (to avoid breaking up the development of the analysis or argument in the text), which can be seen as one reads the (physical) page, are now hidden as endnotes. Do I now have to face the task of incorporating these footnotes into the text?

    The decision to put a treatise on-line involves more than the simple posting of the text where it can be viewed. We have to consider carefully both what we gain and lose by that step. At the moment, I am much more worried about the potential losses.

    I do not know of any advice that may be available to authors who write treatises that may be placed on-line. Do any Slaw members know of any such advice? If any Slaw members have looked at my text on-line, do they have any advice for me?

  7. I have another chapter in a text expected for release in June 2010. It’s far more important to me to be read, recognized, and possibly cited, than any royalties or direct financial returns.
    Consequently, I’m pushing with the editor and publisher for at least some preview online.
    In the Information Age I don’t expect to always to capitalize directly on the information, but rather on my role in possessing and transmitting information to others.

  8. Angela – the foundation work (now almost twenty years old) is Writing space: computers, hypertext, and the remediation of print by J. David Bolter.

    With a blurb that most of us would sigh for: It may well be that Writing Space does for electronic writing what Gutenberg did for print: Brian Eno.

    Bolter is Co-Director of the New Media Center and Wesley Professor of New Media in the School of Literature, Communications, and Culture at the Georgia Institute of Technology, and shows what you can do starting with a BA in Ancient Greek from the University of Toronto. I bought the first edition back in 1991, but not the second which is likely what you need.

  9. The barebones approach to online “self-publishing” making some use of what the web offers amounts to a text with no footnotes and all of the citations and what otherwise might have been below the line in the body, with all of the external references hyperlinked and with internal cross-references hyperlinked so the reader can easily move back and forth. I’ve done that, albeit crudely and not consistently here.

    What one needs to be certain of, obviously, is that one’s external links are to stable URLs.


  10. Gary P. Rodrigues

    I enjoyed reading David Cheifetz’s comment on the burden of being a successful author.

    His success is undoubtedly attributable to the quality of the material he prepared for publication, but I would suggest that Canada Law Book played an important part in its early acceptance by the legal community. Canadian legal publishers not only promote a work but give it their seal of approval or imprimatur by the mere fact of publishing a manuscript. Desk top publishing combined with self promotion are not as credible a means of reaching the legal profession with a new work.

    I would have loved to have published your book while I was at Carswell. Publishing with colleagues at Canada Law Book was the next best thing. Like them, I would even now be pressing you for a second edition in the belief that sales would be even better the second time around.

  11. Gary – Thank you. Funny thing about the reception of Apportionmnet is? was? that, regardless of what the sales were to lawyers, and that it was essentially the only accessible compendium of the case law for Ontario lawyers the thing was rarely mentioned in reported Ontario cases – only 2xs in the 1980s even though it was published in 1981.

    I’d like to believe that was because it answered what needed to be answered for practitioners, in the ordinary course, so clearly that there was no need to argue the issues, hence no need for the judges to cite it.[g]

    References increased to 6x in the 1990s and 12x in the 2000s. I guess this means it’s been getting better, like good wine. Alternatively, people’s memories are fading, so the issues are cropping up again.

    I suppose there might be a few more with my name mispelled but I didn’t search for the ususal variations.