Open Access for Law Book Content

It was in my role as a director of Dunedin Academic Press that recently and with some trepidation, I attended a series of workshops on open access (OA) in relation to scholarly monographs. Issues surrounding open access, as they apply to the academic journals market are now substantially rehearsed but they are less so in relation to books and the various markets for them. While most of the discussion and progress made thus far is in the academic market and primarily in such fields as humanities and social sciences, it certainly made me ponder, perhaps with a degree of anxiety, about the possibility of open access in the market for added-value legal content derived from book publishing.

A point to admit is that questions of open access are not ones, apart from through Dunedin Academic Press, in which I have the deepest expertise, so that participation in the workshops was very much of a learning and information-gathering exercise. My practical experience is as an associate editor of an open access journal, the Italian Law Journal (which, of course, relies on people to provide extensive effort and expertise, pro bono) and editor of Modern Legal Studies journal, whose online version is accessible via a paywalled platform, Ingenta Connect. Another point, stating the obvious, is that there is hardly anything new in not having to pay for access to book content. Whether it’s a visit to a public, professional or academic library, finding a quiet corner in a bookshop, borrowing from another person or even complying with the late Abbie Hoffman’s instructions in this regard, in many circumstances the established norm is not to pay to read the content of books.

At present there are only relatively few open access law books, which is hardly a surprise. However, it is interesting to read Joseph Esposito’s The Coming Wave of Affordable Textbooks, which contrasts OA textbooks with Open Educational Resources (OER) and Inclusive Access programmes; see also Peter W. Martin on Possible Futures for the Legal Treatise in an Environment of Wikis, Blogs, and Myriad Online Primary Law Sources. Whereas many law journals fall into the category and much legal and governmental source material is freely available, academic monographs and textbooks are, for the most part, published in print and electronically on commercial bases and subject to those business models. Moreover, even apart from Google Scholar Legal, there is a multitude of other sources of primary law and free content initiatives, a recent one being from LexisNexis, to offer rule of law news coverage by Law360 and another is the Caselaw Access Project (“CAP”); Daniel Hoadley analyses, in a recently published article, the present state of open access to case law in England in Wales. The various meanings of “free” in relation to legal content are comprehensively alluded to by Colin Lachance in CanLII’s Future as a Canadian Primary Law Cooperative, wherein he makes reference to an existing “lumbering legal publishing oligopoly”. Still, that the issues and questions are being discussed, together with the fact that open access initiatives are being actively encouraged and supported, puts them into a category such that they cannot be simply ignored but rather explored to test what pressures and potential benefits might result.

As they apply to law book publishing, areas which puzzle me are those involving funding, profits and profitability, administration and optimum quality, the latter expressed in terms of adding value. In academic disciplines embracing social sciences, public policy and in areas of science, technology and medicine, there is hardly any doubt that a mix of public and institutional funding, perhaps combined with versions of sponsorship, the last of which may be viable in disciplines such as law, has gained support. In some fields, perhaps strong emotional, welfare or political motives drive a willingness to fund the availability of books for those reasons alone. However, not least because of the established and successful history and legacy of law and professional publishing, certainly in the developed world, I struggle to see replacement business models emerging for these media in the short-term. Sponsorship in many guises and academic subvention are familiar and established models to support law-based information initiatives but differ substantially from evolving open access models. An entirely different market and type of book that is not open access published but nevertheless of interest, The Secret Barrister: Stories of the Law and How It’s Broken has distributed over 60,000 copies in its first six months or so and was in the e-hardback non-fiction top 20 for around three months. It became the subject of a £12,000 crowdfunding campaign which saw the book sent to every sitting UK Member of Parliament; there are many means by which to win and lose.

Law publishers, together with their authors and editors, obviously do or should put the provision of optimum quality high on their list of priorities and this is reflected in terms of the overall standard and sophistication of their content and in the prices that are charged to use it. The degree of added value which the best publishers and their partners bring to their work creates their uniqueness. Therefore, a question might be, to what extent financial support models would be likely to deliver additional and variable quality standards, tools, features and benefits or are they more likely to support only “vanilla” versions?

If a key outcome of higher added-value, certainly from the point of view of commercial publishers, is equivalently higher levels of financial reward, can any model which is based on financial support rise to the level of replicating and increasing turnover, profit and competitive advantage rather than purely covering baseline costs? Do they offer the potential to exceed expectations in all the key respects? At the same time as we see major collections of commercially-published law books diminish in scale and availability, one might imagine that many academic law and related books of great quality and importance would and could not be published on an open access and funded model. There may also be concerns or issues to be overcome around infrastructure, notably whether or not smaller publishers might be as capable and have capacity comparable to the larger ones in administration, including author management and information, tracking and communication usage data, bibliometrics and on copyright issues, to cite only a few. On the other hand, initiatives to give paid online, integrated access to law book content from around the world continue.

It may simply be that “where there is a will, there is a way” and that existing book publishing models aimed at creating electronically delivered content simply reflect the past rather than show a way to the future. Equally, the question of the potential measurable and financial benefits to the publisher, if they exist, are probably of more relevance than those accruing to academic users. In times to come, will we be more likely to refer to the “open access business” than to the “open access movement” or will much of what we recognise today just not survive? As the draconian redundancies by Thomson Reuters and their competitors continue and the consequences thereof become clear, it will be interesting to observe.

There is hardly any doubt as to the popularity and need for good law books, though, as pop singer, Ariana Grande confirms.