I could be wrong, but I don’t think we’ve had a law librarian appear as a guest here. So I was happy that Michael Ginsborg was willing to share some of his thoughts on how we might respond to the high cost of legal resources using … uh, legal remedies. His is, in a sense, a dissenting opinion from the association that he belongs to, but his commentary offers some thoughts on how we might consider involving consumer protection regulations in finding a solution to problems in scholarly communication. (How many of us have wondered, for example, whether there were anti-trust implications in the society that accredits chemistry programs selling to libraries the journals and databases that are required for accreditation? How many of us have framed support for FRPAA as a fair shake not just for strapped libraries, but for taxpayers?) I was eager to hear what he has to say. Thanks, Michael, for taking the time to share your thoughts.
“Why The Largest Publishers Require Us To Unite Efforts In Consumer Advocacy”
by Michael Ginsborg
In “Three Jermaids” (12/23/2010 NY Review of Books), Robert Darnton describes how exorbitant pricing of journal subscriptions has strained academic library budgets. Because academic libraries have had to spend much more on journals, they have much less to spend on monographs, including university press publications – with harmful consequences for scholarship. While he favors open access projects as a long-term remedy, Darnton observes that “prices of commercial journals continue to rise.” Do librarians have another remedy?
We do. We can resort to consumer advocacy, of the kind that my organization – the American Association of Law Libraries (AALL) – once embraced, but has since rejected. (See my arguments in the latest issue of AALL’s newsletter, and a rejoinder by two former AALL Presidents.) In 1969, law librarian Raymond Taylor published an article in the American Bar Association (ABA) Journal, “Law Book Consumers Need Protection.” Taylor was a member of AALL’s Committee on Relations with Publishers and Dealers. He identified deceptive and other unfair business practices by legal publishers to increase profits at their customers’ expense. His seminal article led the Federal Trade Commission (FTC) to adopt legal guidelines for the law book publishing industry in 1975, with support from the ABA, several state bars, and AALL. The FTC could enforce the guidelines by administrative actions or lawsuits, and consumers of legal publication could also use them to sustain claims in class action lawsuits. The FTC rescinded these and other industry guidelines in 2000, but while in effect, the guidelines for legal publishers helped restore fair dealing in advertising, billing, and sales of legal publications. (AALL stills asks legal publishers to voluntarily follow A Guide to Fair Business Practices, despite a record of repeated violations.)
The former legal publishing guidelines were not designed to prevent or reverse escalating increases in the prices of legal subscriptions. Nevertheless, Taylor’s example sets a precedent for more sweeping action by all of us – librarians across the full spectrum of the profession. For we have the means to challenge not only unfair business practices among publishers, but also anti-competitive pricing of “bundled” subscriptions. (A publisher bundles subscriptions when it charges the subscribing library for a licensed group, or package, of electronic or print subscriptions, or both.)
All types of libraries incur substantial harm – individually and together – from non-disclosure clauses in the provisions of their licenses. Such provisions are but one example of unfair business conduct by publishing conglomerates. All types of libraries also face unsustainable price increases in subscription bundling from a handful of publishers that dominate their respective publishing markets. For instance, the three largest legal publishers occupy almost 90% of the legal publishing market in the U.S.. Thomson-Reuters/Legal has a 40% market share. Oligopolies, or dominant market shares, characterize the markets of publishers that license academic library subscriptions to scientific, medical, technical, scholarly, professional and trade publications, and that license public library subscriptions.
Do we have evidence that publishers leverage their dominant market positions to stifle competition from university presses and smaller publishers? If libraries cancel electronic or print subscriptions when renewing a licensing agreement, publishers typically require them to pay increased prices across remaining products and services of the licensed package. Even where a library might switch to lower-priced alternatives, this arrangement leaves it without savings to do so. Because the same publishers also demand non-disclosure, consumers can not disclose to each other the renewal terms of price increases or discounts for specific subscriptions. In oligopoly publishing markets, or markets with “dominant” publishers, such practices by publishers at least raise a credible appearance of creating barriers to entry by lower-priced competitors.
We can build upon the consumer advocacy movement that Taylor inspired, but only by working together, through a coalition. (My colleague Bryan Carson proposes a coalition to address unfair business practices.) As a coalition, we could investigate evidence of unfair and anti-competitive practices of the largest publishers. We could work together to achieve legal reforms, by raising public awareness, seeking FTC intervention, or even – as warranted by evidence – pursuing class action lawsuits.
We have a proud tradition of defending our values. We have never limited ourselves, as AALL now does, to supporting increased public availability of only government publication. We have equally valued increased public access to all forms of copyrighted publication. But we can not advance this more inclusive ideal, without a collective commitment to consumer advocacy.
Michael Ginsborg (firstname.lastname@example.org) has been a law librarian and AALL member for over 20 years.
photo via Morguefile