INTRODUCTION
In a recent article entitled ‘Academic Law Libraries and the Crisis in Legal Education’, Genevieve Blake Tung, Reference Librarian and Assistant Professor at Rutgers University School of Law's Camden Law Library, writes as follows:
Many law librarians are also making innovative efforts to maintain high-quality services during this difficult time. … Law librarians must demonstrate, to both our schools and our students, that our work is part of the solution, not part of the problem.Footnote 1
If we were to substitute the word ‘publishers’ for the word ‘librarians’ in this quotation, then we would have:
Many law publishers are also making innovative efforts to maintain high-quality services during this difficult time. … Publishers must demonstrate, to both our schools and our students, that our work is part of the solution, not part of the problem.
With this in mind, let us now explore today's paradigm shift in legal education. In my view, this shift is already underway and will only accelerate over the coming five years. This development will have consequences for all those who are active in the field of academic legal education: authors, institutions, libraries, students and, last but not least, publishers.
WHAT DOES THE PARADIGM SHIFT IMPLY?
There are a number of buzz words that constantly crop up in the academic literature on management, including ‘innovation’, ‘revolutionary’ and ‘disruptive technology.’ Disruptive technologies ensure that markets do not evolve gradually, but that they are dramatically transformed. The famous historian and philosopher of science Thomas Kuhn referred to this as a ‘paradigm shift’, and Joseph Schumpeter, who is widely cited in management literature, spoke of ‘creative destruction.’ Both writers identified the same process: daring new experiments, often initiated by young practitioners, that challenge the basic principles of the established order – the establishment – and force its exponents to choose between reinventing themselves or slowly but surely disappearing into oblivion. A turbulent and chaotic period of this type is then followed by a period of normal evolution.Footnote 2 Well-known examples of these shifts include the music industry after the arrival of iTunes, Amazon versus traditional bookshops and the collapse of the Encyclopaedia Britannica thanks to the rise of the personal computer, which often came with a free copy of Microsoft's digital Encarta encyclopaedia. Before examining the paradigm shift in academic legal education, let us enter the world of the ‘establishment’, the world to which my company, Boom Juridische Uitgevers (BJU) (Boom Legal Publishers), which was established fifteen years ago, now also belongs.
THE DUTCH LEGAL EDUCATION MARKET
At the present time, there are 26,808 law students registered for academic courses in the Netherlands.Footnote 3 This figure has remained largely stable in recent years. In 2007, for example, there were 26,483. The annual intake of approximately 6,000 has also remained stable. These numbers make the education market, and in particular the legal education market, attractive for publishers. If we think in terms of a student's first-year textbook requirement costing EUR 600 (including VAT), the total market was worth almost EUR 4 million in 2013 (as it was in 2007). On average, the second study year will have approximately 4,000 students, representing a market worth an additional EUR 2.5 million, while the third year's value is roughly EUR 1 million. The total market for legal publications aimed at those pursuing academic education in the Netherlands is thus not far short of EUR 8 million per year. Another attractive feature of the legal textbook market is that the products are overwhelmingly in the Dutch language, certainly at the basic degree level. Foreign publications thus have little chance of success in the Dutch-language legal education market for the first, second and third years of the bachelor's degree programme. Another reason why the legal textbook market is interesting is that the author of a new book can make that book required reading, at least for his or her own students. For a well-subscribed first year degree course this could easily mean a print run of around 800 copies. If additional universities recommend the book, and do so for several years, then it becomes a very interesting proposition indeed. Well-known best sellers in the Netherlands include a book by Hans Nieuwenhuis on property law, the SBR-reeks civil law series, Van Schilfgaarde on company law and the book on civil procedure by Henk Snijders.
AN INSIGHT INTO THE COSTS AND BENEFITS OF THE TRADITIONAL MODEL
I am often asked what publishing a book actually yields in monetary terms and how this can be calculated. I am pleased to have the opportunity to provide a clear insight into these matters. It should be noted, however, that what follows will be a hypothetical example, and that this case-study is based exclusively on the turnover and costs relating to the publication of a textbook. It therefore gives no indications about the other products of a publisher.
The following calculation relates to a fairly successful textbook covering a popular second-year course. The price of this 450-page hardcover book, which is typeset and printed in the traditional manner and has a print run of roughly 3,000 copies, is EUR 65 (incl. VAT). It is used in six different law faculties, representing some 2,000 students.
It is obvious that not all titles conform to this example. Some books fail to attract sales, and some print runs are much lower, but it is fair to say that the better titles do perform as outlined here. Within the Dutch market there are certainly around thirty books that fall into this category.Footnote 4 This, then, is the existing business model for publishers in the legal education sector.
WHAT CHANGES HAVE ALREADY OCCURRED?
If we examine the Dutch market of the 1980s, the period in which I myself was a student, and compare the situation then with the situation now, a number of issues immediately become apparent:
* A thinning of the ranks of publishers, or at least a reduction in the number of imprints. In the 1970s and 1980s, we had famous brands such as W.E.J. Tjeenk Willink (publishers, inter alia, of the weekly case law digest Nederlandse Jurisprudentie, the Schuurman & Jordens series and my own doctoral thesis), H.D. Tjeenk Willink and Gouda Quint (publishers of many criminal law titles and the renowned Pitlo books). All three of these became Kluwer imprints. On the other hand, there were also new initiatives, such as Paris, Boom Juridische Uitgevers (BJU) and Europa Law Publishing. In addition, Ars Aequi still has a presence in the market.
* The demise of academic booksellers, or at least booksellers that have staff who are knowledgeable about law books and about materials suitable for students. Jongbloed was recently taken over by Swets, and, apart from a few local exceptions, all that remains is the Studieboekencentrale (which operates bookshops on university campuses) and the Bol company. Moreover, we have heard so far little to nothing from the new bookchain Polare with respect to textbooks. This also represents a thinning out, and in practice it means the disappearance of a point of sale where in earlier times there were staff members who knew about legal education and the materials needed by law students. In an example connected to my own experience, without the efforts of such bookshops as BGN and Jongbloed, as they used to be called, a series such as Boom Basics could never have been brought to market. However, that route has all but disappeared.
* Today's students are also very different from previous generations. The rector magnificus and president of Leiden University, Professor Carel Stolker, pointed this out when he wrote about university students who are more like pupils doing an extra year at high school and who loll about in their seats wearing back-to-front baseball caps.Footnote 5 Students get lessons from a teacher in a classroom. It is clearly fair to say that the system is becoming more school-like, and that the attitude towards textbooks is quite different from what it was in ‘my’ time. I bought all the prescribed books as soon as I received the reading list, both in my first year and in subsequent years. For many years, those books went with me wherever I was living, and I was proud to have them on my shelves. There they were: my Pitlo, the yellow covers of Stein and Van der Pot Donner. Now there is a generation that plays a waiting game, certainly when it comes to deciding whether or not to buy books. Which books do I really need? Can I buy those books second-hand and online? Would a summary actually suffice? Or perhaps one of those little Boom Basics? I would estimate that only between 60 and 70 percent of first year students now buy new copies of their prescribed books. For second year students, the percentage falls below 50. Even then, it should be remembered that with law books there is the advantage for the publisher that, if all goes well, there will be new editions every couple of years because of changes in the law. On the other hand, there are plenty of students who are willing to take the risk of using an outdated edition. For evidence of this, one has only look at the masses of old editions that are offered for sale online through Bol. Where there is supply there is demand. It is also striking that during the first year of the Erasmis Law college programme, we regularly received calls from the parents of students who complained that they could not access the books that they had ordered and downloaded for their sons or daughters.
* The management of law publishing companies has changed. Compared to earlier times, it is far more difficult for law publishers to operate alone and according to their own lights. Products have become projects that must be run according to a project management method. A project is launched within a project group and has a project owner, a project manager and a steering committee. This is far removed from those romantic days when a law publisher wended his or her way through the large and small rooms of the members of law faculties, enquiring if they possibly had an interesting manuscript in their drawers. Of course, the very idea that a manuscript might be placed in a drawer no longer makes much sense, but that is a different matter. What I am trying to convey is that the ‘publisher’ who could largely follow his or her own interests and instincts no longer exists. Authors and universities tend not see this new management model as having added to the flexibility of publishing companies.
* For those who are not familiar with the textbook market in the Netherlands, it may come as a surprise that since the beginning of the twenty-first century there have been few really new textbook titles. In the fields of administrative law, criminal law and civil law, for example, I have been unable to identify any innovative titles or concepts. I have become aware, from my own experience, that this is because the really impressive new and young professors have no time to devote to writing new books and see no challenge in it. I will return to this point later. There are, of course, some exceptions to this, but it is definitely a problematic development.
* When it comes to developing new titles and new concepts in the field of legal education, another player has emerged: the managers and administrators of law faculties and the Netherlands Organisation for Scientific Research (NWO), which is a major research funder. It was the NWO that decided that academics should receive no academic credit for writing textbooks. Those charged with establishing the organisation's policy guidelines decided that such publications did not contribute to the academic quality of a research programme.Footnote 6 That viewpoint is especially harmful as regards the development of new content and protects the position of existing titles. Although they do not receive academic credit, the authors of such titles do receive substantial royalties, making it attractive to go on revising their books. The calculation given above provides food for thought in this context. It is interesting to note that Professor Stolker, to whom I referred earlier, remains a strong advocate of developing and writing more accessible legal textbooks. In this context, he refers favourably to textbooks published in the United States and the kind of books that publishers like Noordhoff and Pearson are developing for the Dutch higher education market.Footnote 7
Summing up, things have changed very substantially over the last twenty or thirty years: there are fewer bookshops, distribution by means of the internet has grown enormously, courses have been adapted to the new type of student, there is a growing second-hand market, many imprints have been merged and there is little that is truly ‘new’ being developed and published.
WHERE DO WE GO FROM HERE?
When I was asked to share my views on this topic, my brief was no less than to proclaim where we go from here! I will therefore attempt to explain what is happening today and what influence these developments will have on legal publishing in the future.
For the time being, I see the traditional business model, in which textbooks are sold to students who buy them because they need them for their studies, remaining dominant. This is because that is still the way in which education is provided and because the vast majority of the traditional parties in the chain (teachers, publishers and authors) seem to have little appetite for making fundamental changes to the current system. Two-dimensional digital reading and learning on the basis of PDFs and laptops is still very limited in its appeal.Footnote 8
However, as is the case elsewhere, there are clear signs of a change in the way in which study materials are handled in the legal education market, as can be seen in the following examples.
In the case of the Erasmus Law College library, the law faculty of Erasmus University Rotterdam (EUR) made a top-down decision in the framework of the introduction of Problem Based Learning (PBL) that it would work exclusively with digital content. This initiative had a number of eye-catching elements. The first of these was the fact that all the law publishers agreed to cooperate on exactly the same terms. This was a really striking result given that there was one dominant publisher, Kluwer, that had much to lose. A second interesting element concerns the role of the EUR library as the manager of the distribution platform for the digital content.Footnote 9 The importance of the creation of a distribution platform for digital content (in this case textbooks) should not be underestimated, and my assessment of this, is that it was a clear improvement on the situation in the first year of the pilot scheme during which Boom Juridische Uitgevers (BJU) and Kluwer each offered their own platform. A third eye-catching element was the criticism levelled by students with respect to the quality of the PDFs. They saw little added value and could not understand why everything was so expensive. In addition, they were concerned about the fact that the PDFs could not be sold second-hand. The fourth interesting element that emerged after the first four study rounds was that there was evidence of illegal copying and a refusal by students to purchase the packages of digital materials. The EUR attempted to solve this practical problem, which had been foreseen when the pilot scheme was first launched, by resorting to the newly-legislated section 7.50 of the Higher Education Act, which allows faculties to compel students to purchase study materials. In my view, this constitutes a new business model in which the university provides financial cover with respect to the study materials. In return for providing this cover, the university demands a very substantial discount when purchasing content (50 percent in this case) and kills off the second-hand market. This last factor is obviously beneficial for authors and publishers. In fact, a business model of this kind pays due respect to the efforts of both these parties. What we are witnessing in this case is a switch from selling a physical object to licensing the use of a digital product or, in other words, the transition from an ownership model to an access model, which is very much in the spirit of our times. This is no small matter, as it constitutes a fundamental change from the traditional business model that has operated for the last fifty years.Footnote 10
It is worth mentioning here that within a model of this kind, publishers should see themselves as obliged to make strenuous efforts to add new functionalities to the digital content: to simply transpose print to PDF is really not doing enough.Footnote 11 That this is feasible, even with a traditional PDF or e-book, has been proved in a second pilot scheme that my company, Boom Juridische Uitgevers (BJU), is currently running with the Utrecht Law College. Using a special platform, teachers can add comments to the text, students can ask questions and teachers can check whether students have prepared for the next session. It is also easy to add links to films, tests and other additional material. This pilot scheme has been rolled out in four different classes with digital support. The students’ results will be compared with those of four other classes where no such support is available. At the moment, this does not amount to a business model because the books still need to be bought, but this will change in due course. The first step is to develop the idea and make it robust, the next step will be to graft a business model onto it.Footnote 12
A third development that indicates a transition from print to digital storage is the emergence in the Netherlands of the so-called ‘Bookshelfplatform’. In its initial phase, this platform, which was created by Centraal Boekhuis (the Netherlands’ largest wholesaler and distributor of books, owned by Boohstores and Publishers) enables students in higher professional education (HBO) to purchase e-books or access content through digital learning environments such as Blackboard. This platform also has additional functionalities, such as sharing comments and reading content offline. Unfortunately, the major publishers in the HBO market have not yet committed themselves to the platform, which is another indication that their strategy consists of sitting still and not budging. However, it is only a question of time until the established, traditional publishers start to join in. Their only options are to take part or be dethroned by new players.
It is now time to crack a harder nut, because up until now we have only looked at models based on traditional books.
THE REAL PARADIGM SHIFT IN LAW PUBLISHING: UNIVERSITIES ARE BECOMING PUBLISHERS…
Unlike the situation in the 1980s (and earlier), it is now fairly easy to establish a publishing company in the Netherlands. In fact, anyone could set up as a legal publisher. All you need is a plan and some funding, nothing else. You can sell e-books through the CB's digital warehouse and there are also a number of other e-bookshops. Distribution of printed books is also not a problem, as that is precisely the role of the CB, which is jointly owned by the publishers and the book trade. Printers are very eager for jobs and there are more than enough former editors who are looking for work as freelancers. Thus, all the players in the chain are ready and able to start publishing and selling law books in the academic market. In other words, the universities and their staff members can also start up new publishing activities and focus on publishing new materials for legal education.Footnote 13 Start a new publishing enterprise, but remember this: make the starting point of your strategy digital and exploit the possibilities offered to law publishers by the Semantic Web. The changes that are taking place are clearly observable, such as the huge number of open access activities that in many cases are supported by libraries. Traditional university presses are still being established, but with very mixed success. One has only to look at the near-death of Amsterdam University Press in this regard.
… AND PUBLISHERS ARE BECOMING EDUCATORS
Despite what has been said above, it is not the case that the universities and their libraries hold all the cards. In fact, publishers can turn the tables by launching university-level courses. It goes without saying that there are all kinds of legal and other conditions that would have to be met, but there is no reason to suppose that these are insurmountable. If a university can establish a publishing enterprise, and can even let it teeter on the edge of bankruptcy, why should companies like Kluwer, Elsevier or Boom not aspire to provide university-level education? Once again, it is the internet that is the most important driving force for new technology and new business models. A perfect example is furnished by the rapid rise of Massive Online Open Courses (MOOCs), which are being developed by universities in cooperation with new distribution platforms like Coursera.Footnote 14 It is not a new discovery to say that the development of online education is an obvious step. My company, Boom Juridische Uitgevers (BJU), launched Law@web three years ago to provide online training for legal practitioners. Innumerable academics at Dutch university law faculties are already working with and within this system. Moving on to fully-fledged university-level courses would, of course, be a bigger step, but it could be done.Footnote 15
CONCLUSION
This article began with the idea that law publishers should try to be part of the solution rather than part of the problem. I have also made it clear that we, as law publishers, want to go on playing a role in legal education and that we are willing and able to invest in this. However, I do see obstacles, in particular a lack of time, financial resources and initiative among academics when it comes to developing really new concepts. Keeping up with current legal trends, the pressure to publish articles and their teaching commitments make it difficult for them to find the time to come up with fundamentally new ideas. As publishers, we can certainly invest in financial arrangements, technology and marketing, but we need the help of the academics, if necessary in cooperation with libraries or other institutions, to arrive at new concepts for the content needed by the legal market.
In the context of the Netherlands, I would certainly argue for the reversal of the NWO's aforementioned decision. University lecturers should once again be valued and should receive credit for developing and writing high-quality academic legal textbooks for use in legal education. The financial compensation should also be such that the academics in question can be seen as contributing substantially to their university's third revenue stream. It is here that I see a very definite opening for publishers, but to make use of it they will have to abandon their traditional business model with its 15 percent royalty. Authors, libraries and publishers will enter into a set of obligations within a larger project whereby the author will invest time, the library will provide linking and (open) access and the publisher will invest money and technology. For the publisher however, this will involve more than the traditional out-of-pocket costs of producing a book.
