Bundled & Botched: A Note on the Future of Legal Publishing

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Ken Fox

At the 2015 CALL Conference, Robert McKay and Jason Wilson spoke on the Future of Legal Publishing. The following is partly a summary of some of the issues they discussed, and partly my own thoughts as a Law Society librarian.

Of course, the “future” is already here, technologically speaking, and the question of prediction is a matter of divining how markets react to the present, however slowly.

For years, the main purpose of our library has been to stock our shelves, physical and virtual, with high quality legal information, and in particularly legal commentary, otherwise known as secondary legal sources, otherwise known as law books. But it turns out that publishing law books is not necessarily a profitable enterprise.

Canada’s major legal publishers have built their business on reprinting primary law supplied by courts and legislative bodies, while adding value in the form of subject headings, digests, and citing references. Now that primary law is becoming free via the web, and value-added finding aids (indexes, classification systems) are being replaced with search engines, the industry finds its key product line somewhat obsolete. And what remains strictly proprietary, the secondary content (encyclopedias, journals, “books”) we want more of, might not be commercially viable due to the size of the market. Or at least, may not be viable for the larger companies (the big two in Canada) due to low margins.

At the highest level, the major legal publishers are not legal publishers, they are private business enterprises, and as such, they invest their capital in places where there is the most potential for growth. One of the ways the big publishers have chosen to expand their business is in the direction of “transactional and workflow solutions,” or software that assists the operation of a legal business beyond supplying legal information. If the market for legal books, no matter how valuable to the legal profession, is not profitable enough, then the big companies will exit. Optimistically, such an exit could open the door for smaller players to play a larger role in creating high-quality legal content.

But the market for actual “knowledge” is said to be shrinking. There is an overwhelming trend toward reduction – the law reduced to a code that can be managed by machines, legal commentary reduced to a set of instructions or bullet points, legal service reduced to a series of automated transactions. There is some value in this – certain services can be offered at lower costs through automation, and for some purposes a checklist is more useful than a treatise. But such reduction can only confront a static legal system, not a changing one. A dynamic, real-world legal system requires at least some of its practitioners to probe beneath the surface of code currently in effect. Even so, if the size of the market for high-quality legal commentary shrinks below a certain threshold of profitability, then there is little incentive for private industry, large or small, to create such materials.

Having said that, in recent years there seems to be as many new print law titles being published as ever, and with the shift in emphasis from subscription services (looseleafs) back to bound books we have been asking for. In some ways the future is on hold.

The e-texts have arrived, but the market has not learned how to deal with them. On the one hand, distribution is restricted by the fact that they are still “books” – discrete blocks of formatted texts written by individual authors and sold to individual customers, despite there being no physical limitations whatever on their size, speed of reproduction or extent of distribution.

On the other hand, legal ebooks are often not available as individual titles, but bundled together with other texts and primary law, at prohibitive cost to the consumer.

The publishers want to sell bundles of product to unbundled customers, and libraries want to do the opposite – purchase unbundled (affordable) content for bundles of users. Technology favours bundling of both the product and consumer, but it remains to be seen how the market will redefine product and consumer to achieve this inevitable outcome.

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