Published in Law Librarians News last week…
Opinion: Is It Time To Overhaul The Way NSW (Australia) Public Law Departments Manage Purchasing Decisions On Their Legal Database Requirements?
LLN was recently contacted by a former senior law librarian in Australia who has penned the following opinion piece for us .
In this exposition the librarian describes with one succinct example an issue we have seen pop up, year in year out over the past two decades both in the public and the private sector when it comes to pricing the sale of core materials.
In the private sector, in the main it’s a partnership that loses money and nobody is affected except the partners of a particular law firm and the library, of course, that has to carry the brunt of the budget for decisions that have been taken.
But the question that’s raised here is. …
Should the public purse suffer at the expense of profit seeking by corporations?
We believe not and hope that both State and Federal bodies set up a range of new rules and regulations that don’t allow current and future content providers to help themselves liberally to the public purse.
Here at LLN , we believe, that as the market begins to fragment over the next few years as new technology and content solutions & providers come into play, the problem will only compound rather than get better. Also, no doubt sales techniques for these materials will become ever more predatory.
Essentially, without experts working at the purchasing end of the equation it’s likely that more taxpayers money will end up benefitting international shareholders rather than the legal services that we so regard as an integral part of our society.
Finally, we know it’s blindingly obvious to say. But, let’s just take a moment to mull on how the system works. We all know this but let’s state it again. It is the Courts and Parliaments that actually provide the primary materials (case law & legislation) to publishers. The commercial publishers in effect re-package and sell back the same materials to the government. We understand that investments must be recouped and that in no way should government expect free services. But the pendulum has swung too far in the wrong direction, costs should in the main be recouped from the private sector. So, if a bank or private company has to pay more to secure legal services, so be it. Let shareholders shoulder more of the burden and not the taxpayer.
OPINION PIECE
Anon
During my 35 year career, the task of negotiating and mediating between the behemoths of the legal publishing industry, the legal profession, and the ICT industry has become the most difficult, challenging and least understood aspect of the law librarian’s role.
Since 2008, my library had participated in a consortium of government law libraries, for the purpose of negotiating contracts with the Big Three legal publishers. (my library dealt only with LexisNexis Australia (LN) and Thomson Reuters (TR) – CCH does not publish in the area of law for which the department is responsible). The LexisNexis contract had always been the most problematic – financially, it was the largest contract of the three (approx.. $A4 million per year), and its contract proposals were so complicated as to be incomprehensible. For example, in one meeting, I was accused by a rep of being “aggressive and confrontational” for having the temerity to inquire what the base (or recommended retail) price of a looseleaf service was, since it is simply listed as “price on application” on the LN web-site.
As the following experience will show, pricing seems to be quite arbitrary, and does not appear to reflect the actual costs of production. The process for renewing the terms of the three yearly contract became a major exercise, during which LN showed no understanding of, or interest in, the core businesses and specialized information needs of the participating government agencies, but instead, seemed only interested in forcing participants to purchase what LN wanted to sell. Furthermore, the Consortium arrangement meant that participating members were, in effect, pitted against each other in the negotiation process. For example, discounts on certain titles were contingent upon the number of subscriptions maintained across the Consortium, making it difficult for one participant to cancel subs without increasing the price for the whole Consortium. LN appeared to regard the Consortium merely as a reliable means of increasing its annual profits (on which presumably the sales reps’ annual commissions or bonuses were based). In short, it appeared that the Consortium existed to service LexisNexis’ needs, rather than the other way round.
My department was the largest subscriber to a particular looseleaf practice : over 380 subscriptions, which were allocated to departmental lawyers across the state. The contract provided for reduced cost of online access, depending on the number of subs being maintained across the Consortium.
As the practice was updated on an almost monthly basis, filing was adding to the lawyers’ workload. Often it was not done, which meant that department’s investment (over $A300,000 per annum just for that title) was wasted (not to mention the risk of out-of-date law being pursued in courts across NSW). One library staff member was almost fully occupied in the distribution of up-dates, and the maintenance, remediation or disposal of out-of-date or “dead” looseleaf services.
In about 2009, I suggested to LexisNexis that they might consider producing the looseleaf service in electronic format, which could be downloaded to a portable device and used in Court, without an Internet connection. This would be particularly useful for lawyers traveling to country court-houses, where internet connection was either non-existent or unreliable. (there is a story that a magistrate traveling on circuit, when informed at the airport that there was a one-bag limit on the small plane on which she was to travel, elected to take the bag containing her practice, leaving her clothes behind).
LN took up the suggestion, and over the next couple of years, various prototypes were demonstrated to the Consortium, without success. (LN staff changes on the project became like a revolving door – we never saw the same people twice). At one stage, LN asked the Consortium to contribute $50,000 to the development of the e- book. This was refused. Thomson Reuters and CCH were, at the same time, developing their own world-wide standard e- readers. As far as I am aware, clients were not asked to contribute to their development.
The first generation iPad hit the market in 2010, and rapidly attained cult status. While providing greater impetus for the development of content suitable for the legal market, its capabilities added greater complexity to the development and implementation of the product. What I had originally envisaged as a simple .pdf version of the looseleaf service, which could be downloaded to any device regardless of its operating system, now necessitated an iPad on which to read it.
In the 2012 contract negotiations , despairing of ever seeing a workable e-version of the practice, and reasoning that there was no longer a need for such constant updating, with the proliferation of free online sources of caselaw and legislation, together with feed-back from users that the commentary was what they valued most about the publication, I asked for my department’s sub to be changed to replacement of cumulated full innards twice per year. I first asked the sales rep if this was feasible, and to provide an estimated cost of quarterly or half-yearly replacements. The government’s contract negotiator (a procurement officer, not a librarian) later gave me to understand that half-yearly cumulations had been agreed to as part of the new contract. We were advised to expect the first consignment to arrive in early January 2013, by which time we had been invoiced for, and paid in advance, three quarters of the contract amount.
The consignment never arrived – when I inquired, via the procurement officer, I was told that LN had apparently advised him that to do the print-run in this way would cost half a million dollars (it was never explained to my satisfaction why the paper and printing costs would be greater this way, than with monthly updates of varying sizes). In a meeting (from which I was excluded) between LN, the procurement officer, and two senior departmental lawyers who had no idea what they were doing, a deal was done whereby the number of print subs was reduced to 20, the department would take 40 copies of the most recent (but untried and unevaluated) version of the new e-looseleaf service (in addition to 60 already contracted for the Consortium by the procurement officer, and despite the fact that the department did not have enough iPads to run them on, or the budget to purchase more), the LN publishing editors would supply a .pdf version of the practice on a quarterly basis, almost all other print looseleaf services, and journals were canceled, and the department would continue to have IP-fixed access to the full LNAu online platform for all users – but of course it would pay in full for this, because the number of looseleaf services, which attracted the discount, was reduced.
For this, the department still had to pay its contracted amount in full, despite the fact that most of its purchase was now electronic format, and it would have to meet the costs of computer hardware, telecommunications infrastructure, and data download, while LexisNexis was incurring less cost of production in terms of print and paper. (forgive me if this all sounds a little muddled – library staff were given very little information about the final deal, and only discovered the extent of the print cancellations when we tried to claim missing issues from LN and were politely informed that they had been canceled – LexisNexis Australia was not, of course, responsible for the actions and omissions of the two departmental lawyers involved).
To add insult to injury, LexisNexis required the department to sign a license agreement for the use of the .pdf version, which contained so many restrictions as to render it almost unusable (notwithstanding s. 183 of the Copyright Act 1968 (Cwlth) which provides wide latitude on use of material for “the services of the Crown”).
However, I do wish to acknowledge the LN publishing editors, who since 2013 have been most helpful, reliable and efficient at sending the .pdf version of the practice on a quarterly basis. Its arrangement, pagination and paragraph references are exactly the same as the print version. It is accessible and searchable on the departmental intranet, via the Library’s online catalogue, and users are able to download individual chapters to Windows-based desktops and laptops, or to Androids or Ipads. The superseded copies are retained, so that users can see what the law or commentary was at the time of publication. This cannot be done with the online version, or the e-looseleaf version.
Soon after this, the two departmental lawyers (again without consulting me) unilaterally canceled the Thomson Reuters contract (about $140,000, including print and online – I was told “we could get two more lawyers for that” – pretty cheap lawyers….). I have never been able to understand why the department was kept to the LN contract, despite the fact that, technically, LN had breached it, and yet was able to cancel the TR contract when TR had fulfilled its obligations, and when its contract amounted to only a quarter the amount of the LN contract. I was instructed not to tell users that the TR contract had been canceled, but when WestlawAU went down on 1st July 2013, and lawyers suddenly found they could not access the Commonwealth Law Reports and other law reports series online, their protests led to the reinstatement of the online version, however a large number of print subscriptions were canceled, including multiple subscriptions to TR’s equivalent looseleaf practice. I was forbidden to make any arrangements to convert these to the e-looseleaf version, which would have been preferable to LN’s, as it can be used on iPads, Androids and Windows devices.
My objections to these arrangements, and my suggestions as to how they could be more efficiently and cost-effectively managed (for example, iPads and other devices, housing a variety of products, to be included in the library collection, and lent out rather than allocated to individual lawyers on a selective and inequitable basis) were dismissed, I was punished for publicly voicing my views, and the library was isolated, presumably with a view to getting rid of it altogether, since almost all print subscriptions had been canceled, without consideration of the information needs, preferences and usage patterns of library users.
It has become starkly apparent that while the state government has been paying millions of dollars annually to legal publishers, librarians’ positions have been cut. This is an Australia-wide phenomenon, with the closure or downsizing of Commonwealth government special libraries, and across universities, with the disappearance of specialized law librarian positions, the disposal of print collections, and their replacement with electronic versions.
There is wide variation in technological literacy amongst the legal profession in Australia, as has been demonstrated most recently by retired High Court Judge and Trade Unions Royal Commissioner Dyson Heydon (aged 72), stating that he does not possess a computer, does not use email, and that emails have to be printed out for him. Our legislators, too, show a limited understanding of terms like metadata, as demonstrated by the fumbling attempts by the Commonwealth Attorney-General, to explain proposed new national security data retention laws. I have observed in countless meetings between IT personnel and lawyers that lawyers often do not understand what the IT people are talking about, but would never lose face by admitting it. The two lawyers referred to in this piece appeared to be operating under a number of erroneous assumptions – that “the medium is the message” : online is superior to print, and an iPad is even better; canceling print in favour of online will save money; that all legal publications are the same, so we need only patronize one publisher (but even if this assumption were correct, why in this case choose the publisher which charged four times as much, for untested products, and appalling service?); that all the information we need is available online, whereas a library is only about books, so if we cancel the books, we can get rid of the library, save on rent or re-purpose the space, and save on library staff salaries. And of course, the unfortunately common assumption that, being lawyers, they know everything, don’t know what they don’t know, but anything they don’t know can’t be worth knowing (and what would a librarian know anyway?).
I suppose LN cannot be blamed for taking advantage of the gullibility of their customers, and in the short term, they may regard as highly desirable the ability to off-load their products onto an uncomprehending audience, without the intervention of law librarians, but in the longer term it may prove to be their undoing, because the more unusable the products are, the less inclined the profession will be to pay for them.
For my part, I am profoundly relieved to have retired before the launch of Lexis Advance on a hapless Australian market, and am looking forward to attending the Law Via the Internet conference in Sydney, with lawyers who really do know what they are talking about.
