Finding Hidden Treasure

Like many of my North American colleagues, I keep up with new law journal articles by subscribing to alerts from Current Law Journal Content (CLJC), the free table of contents service published by the Washington & Lee School of Law Library and the University of Texas Tarlton Law Library. Particular characteristics of certain of the commercially published law journals indexed in CLJC have recently puzzled me: the practices of these journals seem out of step with today’s norms for distributing metadata and content of scholarly and professional articles. Here’s what I’ve seen:

• Many of the articles in these journals are of substantial interest to legal scholars and practitioners, often in multiple jurisdictions;
• Many of the articles in these journals are likely of substantial interest to a large audience of nonlawyer readers, again often in multiple jurisdictions;
• Someone who is not a legal information professional may have difficulty learning — in a timely manner — what is in these journals, or whether those articles are relevant, because either tables of contents or abstracts of articles in these journals are not published on the free Web;
• If one learns of the articles in these journals and determines they are relevant, one may have difficulty obtaining access to the full text of desired articles, because one cannot purchase individual articles on these journals’ Websites.

In other words, these articles constitute hidden treasure: they are of potentially great interest to an audience of readers much larger than their current audience; yet many of these potential readers either never learn of the existence of these articles, or learn of them too late, or don’t receive enough metadata to determine whether the articles are worth reading in full text, or, having made that determination, encounter substantial obstacles to reading them.

Some Examples

Here are three examples arising from CLJC alerts I’ve recently received or CLJC searches I’ve recently performed (the indexing and computer assisted legal research (CALR) services referred to below are those commonly used by the U.S. legal community, so services such Legal Journals Index, Lawtel, and non-U.S. versions of the major CALR services, are not considered here):

The Environmental and Planning Law Journal, published by Law Book Company of Australia, a subsidiary of Thomson Reuters, seems to offer no access to its tables of contents or abstracts on the open Internet, nor can one purchase individual articles via the journal’s Website. Further, though an online version of the journal appears to be available via fee-based subscription, the journal does not appear to be listed in the Westlaw database directory. The journal is not indexed in Current Index to Legal Periodicals (CILP), a table of contents service widely available in U.S. law schools. The journal is indexed in the legal periodical index LegalTrac, but the coverage is at least 21 months out of date; as of today, the most recent issue indexed is dated January 2009. The journal is indexed in Index to Legal Periodicals and Books (ILP), another well-known U.S.-based legal periodical index, but the coverage appears to be three months out of date; as of today, the most recent issue published is from July 2010. Access to current legal articles matters to academic and non-academic readers alike, because of the increased rate of change in law, policy, technology, finance, and related fields. Further, the citations for this journal’s articles in LegalTrac and ILP appear to lack abstracts. Abstracts are an important type of metadata for potential readers of legal articles because the article’s title, authors’ names, and journal title, considered by themselves, frequently do not furnish enough information about the content of an article to enable a reader to determine whether the article is relevant to his or her needs.

An article recently published in this journal — Cameron Holley, “Public Participation, Environmental Law and New Governance: Lessons for Designing Inclusive and Representative Participatory Processes,” 27 Environmental and Planning Law Journal 360-391 (2010) (Issue No. 5) — exemplifies some of the problems arising from the provision of metadata and electronic full text of articles in this journal. The Holley article is of potential interest to a broad audience, consisting of scholars, policy makers, scientists, and business people in a range of fields, including environmental law, natural resources, land use, political science, and economic development. The article is also of potential interest to citizens interested in politics or the environment. Moreover, potential readers for this article reside, not just in Australia, but all over the world, because individuals engaged with these issues share information with, and learn from the research and experiences of, their colleagues in other jurisdictions. Yet neither the basic metadata for this article, nor the abstract, are listed on the publisher’s Website. In addition, before I published the metadata and abstract of this article on my blog on 14 September 2010 — the author having kindly sent me the abstract and granted me permission to post it — CLJC appears to have been the only source of the author and title information for this article on the free Web, and the abstract was unavailable on the open Internet. As of today, only those who subscribe to the online version of the journal appear to be able to access an electronic version of the article.

Here is another, similar example:

The Australian Property Law Journal is published by LexisNexis Australia (formerly Butterworths Australia), a subsidiary of LexisNexis, a division of Reed Elsevier. Like the publisher mentioned above, this publisher provides neither tables of contents nor abstracts of this journal’s articles on the open Internet, and the publisher does not appear to offer the means to purchase individual articles via the journal’s Website. The journal appears to be available on Lexis.com, so Lexis users who know of the presence of the journal on that service can use Lexis to learn of new articles and access full text. Though not indexed in CILP, the journal is indexed in LegalTrac and ILP, but apparently six months out of date — as of today, the most recent issue indexed is March 2010 — and the citations in both indexes lack abstracts. An article recently published in this journal — Justine Bell, “Greening the Land Title Register: How Can the Land Title Register Assist with Sustainable Decision-Making?,” 18 Australian Property Law Journal 263 (2010) (Issue No. 3) — is of potential interest to scholars, policy makers, and practitioners in a number of fields, including environmental law, environmental policy, land use, property, political science, and egovernment, as well as to citizens in Australia and other jurisdictions. As with Dr. Holley’s article, before I published the metadata and abstract of Dr. Bell’s article on my blog on 17 August 2010 — with the author’s permission — CLJC seems to have been the exclusive source for the basic article metadata on the free Web, and the abstract was unavailable on the open Internet. Dr. Bell has since posted the article, with title and abstract, to SSRN. Before Dr. Bell posted the preprint of the article, the only online access to the full text appears to have been via Lexis.com.

A third example concerns a journal published in the UK. Civil Justice Quarterly is published by Sweet and Maxwell, a subsidiary of Thomson Reuters. The publisher posts, on the open Internet, tables of contents, in PDF format, for selected recent issues — at the moment excluding the current issue — without abstracts. For example, at present, respecting issues published in 2010, only the contents for Volume 29 Issue 2, are available, without abstracts, but the contents for Volume 29 Issues 1 and 3 are absent. The publisher does not offer the opportunity to purchase individual articles on the journal’s Website. Civil Justice Quarterly is not indexed in CILP. It is indexed in LegalTrac and ILP, through the current issue, but without abstracts. Selected articles from the journal appear on Westlaw.

The circumstances respecting an article recently published in the journal — Christopher Hodges, “From Class Actions to Collective Redress: A Revolution in Approach to Compensation,” 28 Civil Justice Quarterly 41-66 (2009) (Issue No. 1) — are telling. No table of contents on the publisher’s Website lists the article’s author, title, or abstract. The article concerns class actions in civil litigation — also known as “citizen suits” or “collective actions” — an issue of wide interest to many kinds of readers in many jurisdictions, particularly in the wake of the recent global financial crisis and recent environmental incidents affecting large numbers of people. Because of its subject and multijurisdictional coverage, the article is of potential interest to legal scholars and practitioners in many jurisdictions, and also to a wide range of nonlawyers, including businesspeople, activists, representatives of labor, investors, and scholars in fields such as political science and economics. Indeed, the article has been cited in a number of policy resources — including the 2009 Report of the Scottish Civil Courts Review and a law firm’s response to the European Commission’s Green Paper on Consumer Collective Redress — as well as in several scholarly works. To this day, however, the abstract of the article appears to be unavailable on the free Web, nor, apparently, can the article be accessed online except via Westlaw.

Why Existing Approaches Are Inadequate

One might respond that interlibrary loan and document delivery services are adequate responses to the problem. Yet these services only address the issue of access to the full text of articles; such services cannot make potential readers aware of articles relevant to their interests. Further, these services sometimes fail to enable full text access, because of licensing restrictions, a lack of lenders, or the borrowing institution’s exhaustion of its borrowing quota respecting a particular journal. In addition, lengthy fulfillment times sometimes result in delivery after an article is no longer needed or no longer current.

A second possible response is that authors will solve this problem themselves, by taking the initiative to post article metadata, including abstracts, and even the full text if the publisher grants permission, on preprint services such as SSRN, or scholarly or institutional repositories, such as the bepress Legal Repository. To be sure, some authors of articles published in the journals discussed here have indeed taken it upon themselves to post their articles on preprint services, where they can provide abstracts and sometimes full text on the open Web. This results in improved awareness of — and often free or low-cost access to the full text of — the articles among the legal and nonlegal communities. See, e.g., Dr. Bell’s article described above, and the preprint of Surya Deva’s article, “Public Interest Litigation in India: A Critical Review,” posted on SSRN.

However, placing the burden on authors to publish metadata and full text of their articles on the free Web is an inferior approach to metadata and content distribution, for several reasons. First, authors may lack the time, staff support, or technical expertise to publish metadata or full text of their articles. Second, even if authors possess the time and resources to post article metadata and content themselves, an economist would regard such activity as an undesirable use of the authors’ time, because the activity squanders the social benefits arising from the division of labor. These authors specialize in research and writing in their areas of expertise. Worktime that they spend on other tasks — such as posting to preprint services — is time wasted in terms of social benefit. Third — and in notable contrast to authors — publishers are well suited to publish metadata about their articles, both because they have expertise in publishing, and because they have expertise in the processing and display of metadata.

Fourth, leaving the publishing of journal article metadata and content to authors and preprint services results in lost revenue to journal publishers. If these publishers were to post rich metadata about their journal articles on their own Websites, in conjunction with ecommerce services allowing readers to purchase full text of individual articles, publishers could realize new revenue. These online sales would likely augment, rather than cannibalize, the publishers’ journal subscription revenues, because most of these one-off online purchasers are likely to be nonsubscribers. Moreover, article ecommerce systems can be configured so as to cultivate repeat customers — for example, by offering new article alert services via email or RSS (see, e.g., here) — and to encourage those repeat customers to become subscribers. To the extent that some subscribers would cancel their subscriptions in favor of purchasing relevant articles piecemeal online, publishers can compensate for such cancellations by adjusting their ecommerce pricing models.

Do Other Publishers Hide Their Treasure?

Commercial legal publishers’ unwillingness to adopt these online metadata display and sales techniques seems particularly odd, since such unwillingness runs counter to industry practice. A large community of scholarly and professional publishers, including those who publish legal journals — such as Taylor and Francis, Springer, Elsevier, Wiley, and Oxford University Press, among many others — currently offers rich article-level metadata with abstracts on the open Internet — even for articles before they are published in print (see, e.g., here) — as well as opportunities to purchase individual journal articles online (see, e.g., here), and services alerting readers of new content (see, e.g., here).

The Costs of Hiding Treasure

That is, the current state of metadata and ecommerce provision by the publishers discussed in the “Some Examples” section above seems to result in a lose-lose-lose-lose situation:

• Potential readers in the legal community often do not receive timely news of articles relevant to them, and when they do, the absence of abstracts often leaves them with insufficient information with which to determine whether to acquire the full text;
• Potential nonlegal readers often never learn of articles relevant to them;
• Authors — trying to plug this metadata and content gap — waste precious time and resources better spent on research and writing; and
• Publishers leave untapped a potentially substantial stream of additional revenue.

What’s the Problem?

What could be inhibiting these legal publishers from exposing their metadata on the open Internet, and offering article-level online purchasing options, particularly considering that:

• These publishers’ production processes are already primarily digital;
• Effective ejournal platforms — such as Public Knowledge Project’s Open Journal Systems (OJS) — are available free of charge;
• Journal article ecommerce expertise and technology are readily available, and, in at least one instance, present within the publisher’s own corporate family; and
• Given the size of the global market, the potential revenues from individual article-level purchases, as well as from new subscriptions arising from repeat online customers, seem substantial?

What do you think is holding these commercial legal publishers back? I welcome your thoughts on answers to this question, which will be the topic of my next column.