When the Publishers Won’t Play Ball

Médecins Sans Frontières (MSF) have raised an issue of great concern in Sub-Saharan Africa. The most effective anti-venom used there to treat cases of snakebite, Fav-Afrique , is no longer being produced by the manufacturer, French pharmaceutical company Sanofi. The existing batches will run out in 2016. Even if another company took up production, it would be two years before replacements would be available. The company says it is no longer profitable to make the drug.

Why am I writing about this in a law blog? In a way it follows on from my previous blog which outlined my case for the importance of the retention of libraries and library collections. The extensive number of comments and favourable re-tweets which resulted took me by surprise; it had obviously struck a nerve.

The responsibility of publishers

There was one aspect of the electronic future that I had not fully addressed in the blog, and that was the role of publishers. If a pharmaceutical company can stop producing life-saving drugs because they are no longer profitable, we are totally kidding ourselves that publishers will take a philanthropic approach to preserving the contents of underperforming legal databases.

The publication of online journal packages, with the assurance of ongoing access to purchased volumes when a subscription is cancelled (using software such as Portico) is very different to the approach by the behemoths of online legal publishing, Lexis@library and Westlaw Thomson. Neither of these publishers offers ongoing access to their content, be it journals or law reports, once a subscription ceases. They have no involvement with schemes such as LOCKSS, CLOCKSS or Portico that enable access to permanent back sets. Another key legal publisher, Hein Online, also does not participate in these schemes, but it publishes its long term retention policy openly online.

I was reminded forcefully of this problem by Wilhelmina Randtke, from Florida Virtual Campus, in her very interesting comment on my blog:

“The publisher is whoever makes a resource available. Historically, publishers/printers made the resource available for a short period, then when a run sold out, libraries made the resource available for coming decades or centuries. Publishers stopped distributing a resource when financial returns fell below a certain thresh hold. Even digital collections of older material now made available by vendors were mostly digitized from library holdings. Publishers did not keep the back log. Now it is trendy for libraries to choose to be just-in-time and oh so cost effective, and with this the expectation is that publishers will hold backlogs just-in-case anyone would like to purchase the resource for their just-in-time need. Publishers are expected to be the just-in-case providers.

“The expected future is that publishers will make the resource available for the short term and also for the long term. But, the historic reason publishers weren’t the ones making something available long term is that eventually the financial returns fell below a certain thresh hold. Cost analysis is oh so trendy in libraries, but natural, necessary, and historic for publishers. What we will see in the near future is discontinuation of resources by vendors, including backlogs.

“The article recognizes dependence on vendors for purchase, but dependence on vendors not to completely destroy material isn’t covered. Complete discontinuation of unprofitable databases is going to happen, though. Traditional weeding happens library by library and so thins the number of holdings. When a vendor does a cost analysis it may take out the only copy and maybe with heavy emphasis on quarterly returns.

Legal publishers stopped taking any responsibility for the future when they stopped holding multiple back copies of loose parts to provide these when libraries lost pages – eg through theft by users, or non- delivery by the postal services. That was nearly 20 years ago. Also, in the 1990’s in Australia two of the smaller Australian state law report series which had been produced in an e-version on CDRom were discontinued by the publisher because they were not profitable. Bad luck for those states, and for the libraries that had ceased subscription to the paper versions.

The responsibility of libraries

So the onus comes back to major academic libraries (and national law libraries where they exist) to take up the responsibility to purchase paper versions of key resources for as long as they are able to afford it. At the Bodleian we have made some hard decisions over time to cancel some categories within the collection such as paper legislation from states and provinces in the US, Canada and Australia, partly because the governments offer online versions, and we are hopeful they will maintain accessible e-versions in posterity. Many major law libraries are now maintaining the paper legislation for their own state/country only, and knowing this provides a go-to place for those resources in extremis.

Universities now house institutional repositories of the academic output of their institutions, and also the data created in the course of research. They do this because they want to have publicly funded research on open access, and not hidden behind publisher paywalls. And one expects that they will support and upgrade the hardware that houses the data as time goes by because it houses the intellectual capital of the institution. This will act as a counterbalance to the threat of losing access to some online resources.

Born digital resources

This is another scenario that may be addressed through web harvesting projects by national libraries and the internet archive – if they are on open access. But it is another can of worms I do not wish to address at present!

So to round up this thread of concern for now, I think there are four false assumptions made by non-information people, especially decision makers The first is that all information is now online; the second is that all information online is free; the third is that there is thus no need for books, and the fourth is that all information now online will be there forever. It is time for concerted action to debunk these myths and expose the truth as we know it!


  1. Of course, it’s also profitable for the publishers not to have warehouses, less square footage, less staff and less expense. If the law firms, law schools and other institutions don’t want to take up space, why should the publishers? I suppose the publishers could say they are listening and reading what their customers have been telling them not only in words but in actions.

  2. David Collier-Brown

    We’ve more or less wandered into this blind ally when commercial organizations started publishing cases, knowing that lawyers would be interested. In the day, that involved typesetting and was a hard task, and so well worth the money. The cost of editing was tiny by comparison, and was lost in the noise.

    Now the publishing costs are approaching zero and we’re not actually printing books any more. Editing costs now predominate. This make archiving nothingness quite a different problem (;-))

    Speculatively, what about holding the publisher responsible to keep their subscription service alive, and requiring the work be delivered to the public domain either on the expiry of copyright or the death of the subscription service?

    That turns it into the “orphan works” problem, which is amenable to the application some new ideas, with some possible examples from National Library and CanLII…

    [You folks keep giving me ideas for start-ups!]

  3. Sarah Sutherland

    Hello Ruth,
    I find your articles on this subject quite interesting.
    I’m curious who believes commercial publishers will be permanent archives and sources for their published / out of print material, because it seems extraordinary that anyone who thinks about preservation would believe that. Preservation isn’t the mandate of commercial publishers, and I would be surprised if you can find any who would claim differently.
    I suspect that where libraries are going to be surprised is when the other libraries they are relying on for just in time delivery are not maintaining their collections.
    Best regards,

  4. Thanks Ruth. Great to read such an interesting and insightful assessment. For my part, however unpalatable to some, I think it is unrealistic to expect the commercial law publishers to engage in any activity which they do not calculate will optimise profits. At the same time, they will do many useful things that will deliver the profit objective in question.
    In my view, and it is contained in my own next Slaw article entitled “Publish and (Perhaps) be Famed”, better outcomes that are to the benefit of lawyers and librarians might be achieved by engaging more with publishers, maybe even addressing some of the publishers’ inherent weaknesses. A previous article “Professional Publishers in Professional Practice”,, sought to suggest that potentially greater overlap between the two functions might serve the interests of the law.

  5. There was a concept (still is, I guess) of abandonware for software (mostly video games), where people would publicly distribute software on the internet which was no longer being sold by the rightsholders. Although a clear copyright infringement, people seemed to get comfortable distributing it on the basis that (i) there was no harm to the rightsholder (they weren’t selling the software anyhow) and (ii) no profits to disgorge. Whether that’s legally correct, I couldn’t tell, but it certainly has a logic.

    I wonder if a similar logic might apply in the context of books or drugs – if you could find a non-profit willing to market the drugs or distribute copies of the publications, is there an opportunity (and, if not, should the law be amended to provide such an opportunity).