What we don't know

A question on MEDLIB-L initially got my attention. It was one that has been seen before. Why can't we get around institutional pricing for serials by having a sympathetic doctor buy journals at the individual subscription rate and then donate them to the library? The questioner was pretty sure that this should not be done, but was having trouble coming up with the specific reasons to give to her hospital administration.

In typical email discussion list fashion, a handful of replies trickled in over the next few hours. A couple of people thought it had something to do with copyright; someone warned of the problems associated with trying to manage journal subscriptions that come in as donations. By the next day, the list had moved on to other topics.

Maybe it was just the dog days of summer, but I was still bothered. I knew that copyright was not the issue, and, while the management problems were real, that train of thought did not respond to the questioner's actual query. It also bothered me that I did not know. After all, in ten years as a library director, I have been responsible for authorizing the payment of millions of dollars to journal publishers, and a lot of that money covered the gap between personal and institutional subscriptions. Although I had griped along with my colleagues over the added expense, I had never really bothered to find out why I went ahead and made those payments.

I decided to take the time to run it down. The first thing I did was query my colleagues on the Association of Academic Health Science Libraries (AAHSL) discussion list. I got a few tips there, but I certainly felt confirmed that I was not alone in my ignorance. I emailed a couple of law librarians whom I used to work with—they had some useful ideas as well but not the complete answer. Finally, I took an afternoon and decided to do some serious self-education. Fortunately, the resources I needed were all available on the Web. The Universal Commercial Code was there along with several good business textbooks and dictionaries and various compilations of business law. After a few hours of swimming in technical legal language, I was able to piece the reasons together.

It goes something like this: The journal publishers are engaged in the perfectly acceptable process of differential pricing, whereby a seller sets different prices for different markets in an attempt to maximize profits. We see differential pricing all the time—senior citizen discounts, cheap theater tickets for students, and education discounts for computer hardware. You may practice it yourself in your library when you charge different prices for doing searches for your institution's medical students and for doing the same searches for local lawyers. Generally speaking, such price discrimination is perfectly fine, unless it is done with “predatory intent,” which Oran's law dictionary defines as “lowering prices solely to put a competitor out of business” [1].

So the publishers can set whatever prices they think their various market segments will pay. Why then, do we have to pay them? This answer is actually pretty simple. The operative terms are “good faith” and “fraud.”

The Universal Commercial Code provides the template against which individual states enact laws to make things consistent across state boundaries. “Every state, with the exception of Louisiana has adopted, with some modifications, Article Two of the Uniform Commercial Code (UCC) as the main body of law that regulates transactions in goods” [2]. Article Two describes in great detail the circumstances under which sales can take place and the various remedies that may be available if there are problems or disagreements. Section 1–203 says (in its entirety), “Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement” [3]. The act also defines good faith as “honesty in fact in the conduct or transaction concerned” [4].

Finally, another legal dictionary supplies the definition of “fraud”: “any act, expression, omission, or concealment calculated to deceive another to his or her disadvantage,” specifically, “a misrepresentation or concealment with reference to some fact material to a transaction that is made with knowledge of its falsity or in reckless disregard of its truth or falsity and with the intent to deceive another” [5].

The issue of fraud seems pretty clear to me. The publisher has the right to set the price, and if I, or someone acting on my behalf, misrepresent myself in order to get a cheaper price for an institutional subscription, I am committing fraud. On the other hand, physicians who, in good faith, take out personal subscriptions to meet their own needs and then want to get rid of the issues in some useful fashion are perfectly entitled to try to donate them to the library.

I am reasonably satisfied with that, but I want to return to what bothered me about the email in the first place. Although the respondents to the initial question were trying to be helpful, the answers that they gave actually were not. This occurrence is not unusual. I subscribe to a number of discussion lists related to electronic licensing, copyright, management of libraries, and so on. Every day people send questions to these lists, and every day the lists fill up with opinions, speculation, and inaccurately remembered bits of things that are, presumably, intended to help the questioner solve the problem. For example, on one such list, two writers are butting heads over an issue, because one of them is perfectly sure that “almost everyone” assumes a certain thing about software licenses, and the other is sure that nearly everyone knows the opposite. But neither of the writers, who obviously care passionately about the topic, have any facts to back up these opinions.

It is one thing, of course, to express opinions and speculations when you clearly identify them that way. Many of the people who responded to me personally, for example, did just that and were quite helpful. It is something else entirely to present those unsupported opinions as if they are undeniable facts.

Of course, this does not just occur on the discussion lists. We hear it wherever we get together and talk shop and complain about journal prices and licensing clauses and funding for higher education or the economic woes of small rural hospitals. We speculate about why publishers act the way that they do, but do we really understand profit margins and costs and cash flow? We complain about a lack of funding in our institutions, but do we know what the financial pressures really are and what choices really are available to our administrators?

This bothers me particularly, because we are librarians. Our reason for existing is to make sure that people have the real facts—the real stuff they need for making decisions. If residents come to the reference desk and say they need information about the efficacy of a particular drug treatment in AIDS, I do not think we would reply, “I think I remember reading something that said they're not getting good results with that anymore.” But we do this with each other's questions all the time.

The email discussion lists have greatly enriched our professional world. In particular, they have made it possible for librarians in small libraries and in remote areas to engage with their colleagues in a way that they never could before. This is a good thing. But as effective as they are in providing useful information, they are just as effective in spreading misinformation. As librarians, we have a particular professional obligation to be careful with the facts. The discussion lists that we use, and the conversations that we have among ourselves, will be much more beneficial if we are as scrupulous about what we know and what we don't know, as we try to be when we are providing information to our patrons.

The electronic BMLA

By the time you read this, if everything goes according to plan, the content of the Bulletin of the Medical Library Association will soon be available in electronic form, through PubMed Central. I am writing this at the beginning of October, and the data testing appears to be going smoothly. Early in 2001, we expect to have all four of the year 2000 issues available, and thereafter the content should be deposited when the final approved copy is ready to be printed.

The MLA Board has been discussing an electronic Bulletin for several years. While there has always been agreement in principle that this would be a good thing, deciding exactly how and when has been the subject of considerable discussion. What form should the electronic publication take? Should it be hosted on MLA's own equipment? Should MLA contract with a firm like HighWire Press or use the services of Allen Press, which produces the print version? What would the costs be? How should access be managed?

Using PubMed Central is a logical, economical way to take this important step. We should remember, however, that we continue to be in a period of great change with regard to electronic publication. Making the content of the Bulletin available in digital form is just one step in the process of discovering how we can best make use of these new technologies to share information and to enhance and develop our professional knowledge. How the Bulletin will develop over the next few years, in both its print and digital incarnations, is a very open question.

I encourage you to try the electronic Bulletin on PubMed Central when it is available. Then, let us know what you like and what you do not like. What do we need more of? How should the publication evolve? This is just the beginning.