###  The Open Access Big Deal: Back to the Future 

On a superficial reading open access is intended to do no more than what it says on the can: provide an internet-based scholarly communication system in which research is made available _sans_ paywall – in other words, a system offering improved _accessibility_ over the traditional subscription system.

On a deeper reading, however, we learn that the OA movement was a response to the unsustainably high costs of the subscription system and that it was based on a conviction that open access would be a more cost-effective way of sharing research – in other words, a system offering improved _affordability_.  
  
---  
Kenneth Frazier, 2001  
  


In addition, it was argued, open access would be a more transparent way of doing things than the subscription-based system.   
Essentially, the argument went like this: If researchers paid an article-processing charge (APC) every time they wanted to publish a paper (rather than librarians paying the costs of publishing by purchasing subscriptions to large bundles of journals courtesy of the so-called Big Deal), then not only could research papers be made freely available to all, but authors would be able to make price-based decisions when choosing where to publish.   


This price _transparency_ , argued OA advocates, would introduce market forces into scholarly publishing that are absent in the subscription system. It would also allow new open access publishers to enter the market with lower-priced products, which would help drive down prices.

In short, OA advocates promised that open access would not only provide greater _accessibility_ but a more cost-effective scholarly communication system, thereby solving the _affordability_ problem that has long dogged scholarly publishing. And to achieve this, they said, _transparency_ is key.

###  Transparency is key

_Transparency_ is key because in order to make price-based decisions buyers need to be able to compare prices. While APCs allow this, Big Deals do not, because with the subscription system researchers have no idea whatsoever what costs are involved, and librarians (who buy on their behalf) do not have a published price list to work from and do not know what other librarians are paying for their Big Deals, since publishers insist on non-disclosure agreements (NDAs). In such an environment pricing is opaque and everyone bar the publishers has to fly blind.

As OA developed, however, it became apparent that most researchers do not have access to the necessary funds to pay APCs, so libraries have again had to start acting as intermediaries. In doing so, however, they have found the task of managing hundreds of APC payments on behalf of researchers difficult, time-consuming and expensive. For this reason, they have struggled to cope. 

At the same time, European governments, funders and university leaders have become increasingly impatient at the time it is taking to achieve widescale open access. 

These two things have led to the emergence of the OA Big Deal. Here agreements are signed with legacy publishers that combine bulk journal subscription fees (as with traditional Big Deals) _plus_ bulk OA publishing fees so that authors can publish without personally having to pay APCs. Those librarians and university leaders signing these deals have therefore come to view the OA Big Deal as the best way of transitioning to a fully OA publishing environment. And while today the OA Big Deal is more of a European issue, it looks set to become the model of choice elsewhere in the global North (also here). 

As we shall see, however, there are good reasons to doubt that this strategy can provide a satisfactory outcome. 

Strikingly, it is the most vocal critics of legacy publishers and their prices (librarians and national university associations) who are promoting these deals, either because they fail to understand (or accept) the implications of what they are doing, or because they have been mesmerised by the EU’s rash and unthought-through commitment to make all European research freely available by 2020. 

It is also concerning that the negotiators of these OA Big Deals appear to have little appetite for _transparency_. What these agreements consist of, what they cost, and what kind of value for money they offer (or don’t offer), therefore, is generally unknown to anyone outside the small group of people taking part in in the negotiations.

###  Hard to describe

Commenting on these deals last year, the CEO of OA publisher Hindawi Paul Peters said, “Describing exactly what these things are is quite difficult, both because … none of these deals looks like another one of these deals – they all have slightly different models. Universities are getting coupons they can use on things, or discounts, or everything is all bundled together.”

He added, “And apart from their being difficult to describe because of the variety, they are hard to describe because they are not public. Most of these things are covered by NDAs and the only things we hear tend to leak out via the grapevine, so it is hard to describe what is happening.” 

Contributing a further level of confusion, these agreements have given rise to a rash of ambiguous euphemisms – including “transition agreement”, “offsetting arrangement”, “Read and Publish” agreement and, more recently, “Publish and Read” agreement. 

What then can we say about these OA Big Deals? How do we go about differentiating them? And what are the likely implications of their use?

One obvious problem with the OA Big Deal is that it allows large legacy publishers to lock their high prices into the new OA environment, while marginalising and excluding the new-entrants that were supposed to disrupt the market. Unless something changes, therefore, the _affordability_ problem will only be perpetuated. 

And as Peters points out, it is not even clear what these things are. When I took to Twitter to ask Bernhard Mittermaier (head of the Central Library at the Jülich Research Centre and a member of a team negotiating these kind of deals in Germany) for guidance on the term Read and Publish he replied: “To the best of my knowledge, the term ‘Read & Publish’ was introduced by Royal Society of Chemistry, though others had the concept in place earlier.”

Under this model, he explained, “An institution pays for reading (subscription fees) and can publish all its corresponding author articles as hybrid open access. This comes with no additional costs for the authors and for the institution; everything is paid upfront as a lump sum (adjustments according to the actual number of articles might occur in the following year or the next contract). Another name for that is ‘offsetting contract’.”

By contrast, he added, the model that he and his colleagues in Germany are working towards with Project DEAL is what they have dubbed ‘Publish and Read’. With this model, he explained, “We strive to pay according to the number of publications and read at no additional costs. Rationale: Publishers are paid for publishing. One can read the articles elsewhere as well. And there is no reason to pay them for both.”

This website describes the Publish and Read model as one in which all the articles by authors in eligible institutions are made open access on publication under a CC BY license (the __Publish component__) and eligible institutions have perpetual access to the complete e‑journal portfolio of the publisher in question (the __Read component__).

It seems fair to say that the Publish and Read approach is more assertive than most OA Big Deal models. And that presumably explains why it has led to a long-running standoff between German universities and Elsevier. 

In the Netherlands by contrast, a less aggressive approach has been adopted. Essentially, explained Dutch OA publishing consultant Jeroen Sondervan on Twitter, the Dutch have been pursuing a Read and Publish model. This is being done under the aegis of the association of Dutch universities (VSNU). 

###  Fundamentally flawed

But even if the more aggressive German approach were widely adopted, it would still see legacy publishers embedding themselves and their high prices into the new OA world, while elbowing aside OA publishers like Hindawi and PLOS. For this reason alone, some feel that the OA Big Deal is fundamentally flawed.

And as indicated, the current landscape is confused and confusing. Even those seeking to negotiate these deals appear sometimes to be hazy as to what exactly an OA Big Deal consists (or should consist) of.

On 15th March, for instance, the Swissuniversities (Rectors’ Conference of the Swiss Universities) published a document announcing that, as part of a national open access policy intended to make all publicly-funded research freely accessible by 2024, Switzerland plans to negotiate OA Big Deal contracts with publishers. These, it said, would consist of agreements in which [Google translation] “universities finance the publication costs and pay a fixed price for reading and downloading published articles and to pay for works without incurring additional costs for Swiss universities. This will replace the classic subscriptions whose prices vary according to the journal.”

This makes it sound like Switzerland currently buys individual journal subscriptions, which seems unlikely. But what is puzzling here is that when one enquires as to whether the Swiss are looking to emulate the assertive German approach, the more modest VSNU approach, or some other approach, one gets the impression that the negotiators either do not know what strategy they plan to pursue, or wish to keep it secret. 

So, another characteristic of the OA Big Deal is that it tends to perpetuate the secrecy inherent in the traditional Big Deal. The problem is that if the details of these agreements are kept secret how will any negotiating team be able to make price-based decisions, or facilitate the emergence of market forces? They won’t know what publishers agreed with other groups, and so will find they are still be flying blind. Likewise, how will taxpayers know what has been purchased in their name, and at what price? 

It would seem, therefore, that OA Big Deals will simply replicate the lack of _transparency_ endemic to the subscription Big Deal, and so fail to address the _affordability_ problem.

###  Well-intentioned and worthy

Let’s be clear, those negotiating OA Big Deals are well-intentioned people and their goal is a worthy one: They want to engineer a transition to a world in which all research is freely available to everyone, which is surely “a good thing”. It is also important to note that they are keen to avoid the disastrous mistake the UK made in trying to take a leadership role in open access by agreeing to pay publishers more money to provide OA.

The UK has signally failed to achieve any meaningful transition to OA while enriching publishers further. It is also now clear that the UK approach is financially unsustainable. This is all too evident if one reads the recent _Monitoring the Transition to Open Access_ report. As the _Times Higher_ noted, “In 2016, a sample of 10 UK universities paid £16.1 million for subscriptions to seven of the biggest publishers, up a fifth since 2013, according to a new Universities UK report tracking the growth of open access publishing, released on 5 December. Yet these universities also spent £3.4 million on article processing charges (APCs), the fees required to publish an article open access, up from about £750,000 three years previously”.

European negotiators have therefore vowed that they will provide no new money for OA Big Deals, although whether they will succeed in this remains open to question. In any case, even if they do manage to avoid the British trap, it is highly unlikely that the costs of scholarly communication will come down as a result of these agreements. Legacy publishers are never going to voluntarily agree to deals that will lead to a fall in their profits, and by their very nature, these deals cannot unleash the kind of market forces that would be needed to compel publishers to lower their prices.

Moreover, even if the OA movement gives up one of its primary objectives (a lower-cost scholarly communication system) how will anyone not involved in the negotiations know whether any OA Big Deal does or does not involve new money and is good value? As Peters pointed out, aside from those directly involved in negotiations, no one knows what is being agreed. 

There is, therefore, growing concern in the research community that those agreeing national contracts with publishers are failing to get a good deal, and enriching publishers at the expense of the research community (and thus the taxpayer). There is, for instance, now some disenchantment with the UK organisation charged with negotiating with publishers (Jisc). We shall discuss Finland and the Netherlands in a minute. 

To find out what publishers are being paid for their Big Deals researchers have had to resort to making Freedom of Information (FoI) requests – a tactic pioneered in 2014 by Cambridge mathematician Timothy Gowers, and by similarly curious researchers in the US. Their findings have only led to growing anger and scepticism.

It was in recognition of this anger that last September the Association of European Research Libraries (LIBER) published the Five Principles for Negotiations with Publishers. One of these principles (headed **Transparency for Licensing Deals: No Non-Disclosure**) reads, “Licensing agreements should therefore be openly available. Society will not accept confidential agreements paid for with public money in the form of non-disclosure agreements.”

One question we need to ask at this point is whether OA Big Deals are any more transparent than the traditional Big Deal. This question took centre stage when, on 17th January, Elsevier announced that it had signed a deal with the FinELib consortium based at the National Library of Finland. Like all recent deals in Europe today, the Finnish agreement had an OA component. Yet even though no NDA had been signed, there was a distinct shortage of detail about what had been agreed between Elsevier and FinELib. This was all the more striking given that shortly after the announcement FinELib publicly endorsed the LIBER _transparency_ principles. 

When I asked FinELib why so few details had been made public even though no NDA had been signed I was told, “The confidentiality of an agreement is not based on whether or not there is an NDA. At least in Finland the principle of loyalty between contracting parties needs also to be taken into account.”

Needless to say, Finnish researchers were less than impressed with this explanation, and put considerable pressure on FinELib to publish more information about the agreement. This had some success, and in February FinELib agreed to publish more details, including the total price of the deal at the consortium level, the total price per consortium member, plus the text of the Elsevier agreement. 

FinELib added, however, that it was not able to publish the annual prices alongside the total price due to a requirement in the Act on the Openness of Government Activities. This, it explained, forbids the publication of “documents containing information on a private business or professional secret, as well as documents containing other comparable private business information, if access would cause economic loss to the private business.”

NDAs, it seems, may not be the whole story here. 

###  At least four problems

The Finnish agreement also graphically demonstrates how OA Big Deals lock in large legacy publishers, to their advantage and to the disadvantage of pure OA publishers and smaller companies. 

Specifically, the open access “pilot” built into the FinELib agreement gives researchers a 50% discount if they opt to publish open access in a group of Elsevier journals. Finnish researchers were quick to point out these journals are predominantly hybrid OA, not pure OA. Consequently, rather than hasten a transition to OA, they complained, the deal will embed hybrid OA in the Finnish publishing landscape for the foreseeable future. This will prolong the subscription model (and so delay the transition to OA) and elbow out pure gold OA publishers.

Frustration grew when it was discovered that Helsinki University already offers a 50% discount for publishing OA in Elsevier journals, giving the publisher an even greater advantage over pure OA journals. “Elsevier is now free (and cheaper than full OA) for a researcher,” tweeted one researcher. 

It seems to me, therefore, that there are at least four problems with OA Big Deals. First, even where no NDA has been signed, _transparency_ over what has been agreed, and the costs, remains inadequate. Second, these deals often seem as likely to delay as accelerate the transition to open access, and certainly not in the way governments and funders in Europe are now keen to see. Third, they unfairly advantage large legacy publishers. Fourth, these deals are as a result unlikely to solve the _affordability_ problem. 

On a more positive note, Finnish experience suggests that if researchers are persistent they may be able to persuade negotiators to provide more _transparency_ that has been possible historically. However, this is more to do with heightened suspicion about publishers than open access. Either way, however, many will feel it is an insufficient reason to warrant pursuing OA Big Deals.

###  The Dutch approach

I argue that those negotiating OA Big Deals are shy about sharing the details of the agreements they are signing. In this regard it is worth considering the activities of one of the organisations that pioneered the OA Big Deal – VSNU. The association has been active in this space since 2015 and is keen to promote its self-styled Dutch Approach. 

When it started VSNU vowed that it was going to take a hard line with legacy publishers, especially Elsevier. “We are willing to pay publishers for the work they do, but Elsevier’s profit margin is approaching 40 per cent, and universities have to do the [editing] work and pay for it”, asserted Professor Meijer, then chief negotiator for VSNU and Chairman of Radboud University Nijmegen. “We aren’t going to accept it any longer.” 

As part of the sabre rattling, VSNU threatened publisher boycotts, and began to reject publishers’ offers. In 2017, for instance, it turned down the deal offered by Oxford University Press (OUP).

Nevertheless, it has gone on to agree a number of OA Big Deals, including in late 2015 one with Elsevier. This came after a year-long deadlock (and is currently up for renewal). Nevertheless, when researchers saw the details of the agreement they expressed some disappointment. And there has been rumbling discontent with the Dutch approach since, not least over its lack of _transparency_. Again, it took FoI requests to obtain more information and in 2016 this saw details of what Dutch universities pay to scholarly publishers become publicly available (Details here; see also here).

Currently, VSNU is engaged in a new series of negotiations. In doing so it again insists that it is taking a hard-line with publishers and indeed on 12th March it announced that it had failed to reach agreement with the Royal Society of Chemistry (RSC). Speaking to ScienceGuideKoen Becking, President of Tilburg University and board member of VSNU said, [Google translate] “We have shown that a ‘no deal’ is also possible. We stand behind our commitment: we only pay for output.”

On the same day (12th March) VSNU also reported that it had renewed its agreement with Springer Nature. 

Both VSNU’s announcements consisted of little more than a brief statement with no meaningful detail. While subsequent news of a deal with OUP also included a couple of self-serving quotes, there was little else, and researchers were left scratching their heads. As one perplexed scientist commented on Google+, “The article does not mention the cost of the deal – how much Netherlands pays for the deal per year?”

If the research community doesn’t even know how much money is involved how can it hope to judge the value of any OA Big Deal. And even if we are convinced by VSNU’s robust statements about beating publishers into submission, we are not ourselves able to judge whether taxpayers’ money has really been spent effectively, let alone what exactly that money has bought. 

I was alerted to the Springer Nature deal by a librarian who is clearly unhappy about the way VSNU is negotiating these deals, and the abiding lack of _transparency_ that surrounds them. Describing herself on Twitter as an open access advocate, she emailed me to ask, “Would it not be time for some questions towards VSNU on how, why and for what amount?”

Since that seemed like a good idea I took to Twitter, and invited VSNU and Springer Nature, as well as RSC, to answer some questions. 

I received no response from Springer Nature. 

The RSC did reply and sent me a statement about its failed negotiation with SURF (who act on behalf of VSNU) along with an invitation to schedule a conversation to discuss the RSC’s OA work more generally (I responded by offering to visit their offices). 

Unfortunately, the RSC statement tells us little, although it is interesting to learn that (amongst other things) it offered a Read and Publish option to the Dutch universities. If Sondervan is right to characterise the model that VSNU is pursuing as being Read and Publish, why did it turn down RSC’s offer? We do not know. Presumably, the issue was pricing, but without more information we cannot know who is being reasonable here and who unreasonable.

In the end, only VSNU can tell us why it turned down the RSC offer, which is partly why I contacted the organisation. That said, I was mainly interested in obtaining details of the Springer Nature deal. At first, my attempt to do so met with an encouraging response. VSNU replied to my Tweet by inviting me to email my questions to them. So, I emailed over 22 questions. Yes, it was a lot, but how else are we going to know what is going on with these deals if we don’t try to drill down beneath the press releases, beneath the corporate quotes, and beneath the declamatory statements.

###  Disappointed

VSNU’s Spokesperson and Advisor Public Affairs Bart Pierik responded by saying (fairly) that he would need a little time to answer my questions. I was disappointed, however, when the next day I received an email from him saying, “Considering the fact that we are finalizing some more deals with publishers at this moment (we just published good news about Oxford University Press) my proposal is that we would be glad to make one Q&A in April about all of these deals.”

I was disappointed with this response not just because it would mean a delay before details of the Springer Nature were made public, but because it seemed self-evident to me that if my 22 questions were re-focussed and rolled into a discussion about a bunch of other agreements the details of the Springer Nature deal would get lost. As I say, it is the details of these agreements that seem to me to be vital if we are ever to establish exactly what is going on and whether these OA Big Deals offer any kind of value for money.

VSNU’s response to my questions, plus the fact that it took a series of FoI requests to find out what Dutch universities are paying publishers last time around, left me a little sceptical as to how committed to _transparency_ the organisation is. The desirability of their being transparent seems all the more pressing given that there is some discontent with the way VSNU has been negotiating OA Big Deals. At a Couperin event held in January, for instance, Becking (along with Director of Scientific Information Provision at the Max Planck Digital Library Ralph Schimmer) faced a series of awkward questions and complaints from the audience. 

Concern was expressed about pricing, about the dangers of allowing large legacy publishers to lock themselves into the new OA environment, about the consequences of this for pure OA publishers and smaller companies (and for future innovation) and about the future of scholarly publishing if OA Big Deals become the norm. 

(In passing we would note that Couperin, the French consortium of academic and research institutions, recently announced that it has failed to reach agreement with Springer Nature for an OA Big Deal, and so researchers in France will lose access to the publisher’s journals on April 1st). **[Update 31/03: I have been advised that this was not an OA Big Deal negotiation but (presumably) a regular Big Deal. However, as _The Scientist_ points out, ****“****the consortium was pushing for a reduction in subscription costs to account for the increasing proportion of open-access articles – for which authors pay an article processing fee to publish – in Springer's journals.****” It****’****s complicated.****]**  


The questions and points aired at the Couperin meeting appeared sufficiently compelling that Becking closed the session by saying [at 43m in this video], “I have two take-home messages for myself. That is to communicate better on what we are doing and why etc. etc. And secondly to invest more in new initiatives.”

But if the Couperin meeting has encouraged VSNU as an organisation to commit to greater _transparency_ it is not immediately evident. Why did it not provide greater details when it made its recent announcements? And why did it seek to refocus and (I assume drown out) at least some of my 22 questions? I am also not aware that anything beyond the sparse announcements made in early March (and the quote from Becking in the ScienceGuide piece cited above) has been released to the public in order to clarify what VSNU has agreed with Springer Nature and OUP (and failed to agree with RSC). The organisation also seems inclined to ignore requests for information from others.

In light of my growing scepticism, on receipt of VSNU’s email I took to Twitter again to share my disappointment. “Information on the new Springer Nature/ VSNU OA Big Deal is sparse, to say the least,” I tweeted. “VSNU agreed to answer my questions, but after seeing them decided it does not want to answer any questions on its negotiations until April.”

VSNU’s Bart Pierikresponded: “This is bogus (and you know it). With many negotiations going on, we offered to make one complete Q&A, as to offer all relevant Information in one place – your website.” 

My response to Pierik is here. 

###  Public money

But what about Springer? Why did it not respond to my tweets? Again, I cannot say. However, when I later suggested that the European Commissioner for Competition might be advised to look into the growing number of OA Big Deals, I did finally get a response from the publisher – in the form of a comment from Robert Boissy, Springer Nature Director of Institutional Marketing & Account Development, Americas. He said, “So at the end of the day the OA availability is less important than the path taken to the OA availability? I respectfully disagree.” 

In thinking about the implications of Boissy’s comment it occurred to me he is saying that all that matters in the transition to open access is the end-point, not the process. But surely how one arrives at an end-point often determines the nature of that end-point. Boissy appears to be saying that _accessibility_ is all that matters,not _affordability_ , and not _transparency_. So long as the world gets OA it doesn’t matter what the taxpayer has to pay for it, or whether what is paid (and what that payment buys) is made public. 

Boissy’s comment would also seem to imply that it does not matter if legacy publishers are allowed to dominate the new OA landscape. 

Yet history shows us the consequences of allowing large publishers to dominate scholarly communication. Despite claims that the internet levels the playing field, the arrival of the Web has seen ever greater consolidation, coupled with a routine lack of _transparency_ , and a consequent cycle of ever-rising prices. 

As a paper published by PLOS ONE in 2015 called The Oligopoly of Academic Publishers in the Digital Era explained, “Combined, the top five most prolific publishers [now] account for more than 50% of all papers published in 2013. Disciplines of the social sciences have the highest level of concentration (70% of papers from the top five publishers), while the humanities have remained relatively independent (20% from top five publishers).”

As I see it, the new OA Big Deals can only accelerate the process of consolidation and push out (or swallow up) the (inevitably smaller) pure OA publishers. The latter, let’s recall, were supposed to disrupt the scholarly publishing market by making it more competitive, and driving down prices. 

What happens when we get to the point where scholarly publishing is dominated by not five but just one company – let’s call it SNEW. Would it really be good for the research community? Would not that company be able to hold researchers (and the taxpayers that fund them) hostage? 

Meanwhile, legacy publishers are moving into the workflow, analytical services, institutional repository, electronic notebook and data services areas of scholarly communication. Every part of the scholarly infrastructure is now threatened with appropriation and domination by large commercial publishers, with Elsevier leading the pack. Surely every OA Big Deal signed assists in this process of consolidation and appropriation, as does every agreement where the costs and terms are not released to the world. This is public money being spent on these companies, people. Is it really being spent wisely?

In short, the world really needs to know what is going on. I told VSNU I would get back to them in April. But on reflection, I wonder whether there is sufficient value in undertaking a Q&A if one allows the interviewee too much control over the questions and how and when they are answered. VSNU has my 22 questions. It is clearly free to answer them or not as it desires. Either way, it is now two weeks since I emailed them over, and two weeks since I proposed to RSC that I visit their office (for which I have yet to receive a response).

So, I will end by again inviting VSNU to answer my questions. By doing so they can help shine a light on this somewhat crepuscular corner of scholarly communication and demonstrate that _affordability_ and _transparency_ are just as important as _accessibility_.

    

Useful collection of information, thanks. Customary note that all this is about problems with (hybrid) gold OA, not with OA in general. Laws, policies and investments on green OA or self-managed OA journals don't seem affected by most of the arguments here, right?  
  
Crosslinking http://bjoern.brembs.net/2016/04/how-gold-open-access-may-make-things-worse/ 

    

Thanks for commenting Federico.   
  
I think open access is a good thing and should be encouraged.  
  
My rule of thumb, however, is that any initiative that seeks to force researchers to embrace OA, that lacks transparency, or that advantages legacy publishers over pure OA publishers is not desirable.  
  
Since my list of undesirables would encompass green OA mandates I guess few OA advocates would agree with me. And since I think the notion of charging APCs is a very bad idea a lot of OA advocates would take me to task for that too.  
  
Self-managed scholar-led OA journals seem like a very good idea. The concern must be, however, that they will experience sustainability problems. But I am sure there are solutions to these problems. 

    

There is very little information on the underlying factors of the negotiating powers of the big publishers. At one point you say: "Would not that company be able to hold researchers (and the taxpayers that fund them) hostage?"   
Here is one root cause: the body of the existing copyrighted scientific literature being held hostage! Until a solution if found to free the hostage, a lasting solution for the easily affordable OA world is difficult to imagine.  
Unless there is a revolution... 

    

I wonder who imposes this secrecy. Is it really the publishers? Does Springer or Elsevier say to university negotiators: either you promise to keep all under wraps, or we are not negotiating with you? There, we publishers cancel subscriptions, keep your stupid money, see how you like it?   
I don't think this is likely. Rather, my guess is it is the university negotiators who decided to keep the process secret. Why on Earth?  
Is it by tradition, because everything which happens in German or Swiss academia is secret by default and can never be accessed by any FOIA inquiries?  
Do they really think they can outwit big publishers behind closed doors? Even if the Swiss employ a professor of negotiation and conflict management, I doubt they can intimidate Elsevier into submission, but what if they really believe it? What if they really think by keeping they cards out of public's prying eyes their hand will become stronger, as in some form of magic poker? Don't they understand that the publishers know exactly which cards the universities are holding (staying with poker comparison)?  
  
Bringing these Big Dealings into public will in fact make the negotiations much, much easier. The publishers will panic, because this is absolutely the last thing they want. And they can't even avoid it by threatening to pull out of negotiations.  
But of course where does it leave our esteemed academics with their love for confidentiality, their obsession for quiet backdoor dealings and their ivory tower arrogance towards those industry salesmen whom they deem to be failed scientists of insufficient intelligence?  


    

Gábor, you are right, legacy publishers effectively own (via copyright transfer/exclusive rights) huge backfiles of research papers and are using them to extort large amounts of money from the public purse.   
  
But it is not necessary to have a revolution I think. National governments should be looking at ways to repatriate this content and make it freely available to the world. Here are some of the models I have in mind. 

    

Not that the end game of nationalisation is normally to make services free. The aim is to return vital services and infrastructures to public ownership, for the benefit of all, not just shareholders. 

said... 
    

Leonid, I can promise you that university administrators are not the ones who put confidentiality clauses into licenses. I have negotiated scores of licenses with publishers in my career, and in not a single case did I add a confidentiality clause myself, nor am I aware of any librarian who has done so. On the contrary, we regularly try to negotiate them _out_. And in the case of public universities, we are not even allowed to agree to them (let alone add them!) unless they are carefully edited to allow the kinds of public disclosure that the law requires of us.  
  
One reason that publishers want to impose confidentiality terms is so that they can customize the terms of their licenses (especially with regard to pricing) without fear of customers comparing notes with each other. 

    

Leonid Schneider, your assumptions are wrong.  
It's not literally like: "Does Springer or Elsevier say to university negotiators: either you promise to keep all under wraps, or we are not negotiating with you?", but almost. Questions of secrecy are normally not at the beginning of the negotiation, but at the end (DEAL is a counter example). Once you have agreed on content and price, you receive the publishers' standard licence agreement and there the confidentiality clause is included. Then you either sign it or start arguing, in some cases quite long. For example, I still haven't signed one contract with a term 2016/2017, as of March 29th 2018. One of the reasons is a dispute about confidentiality. 

    

Oh, I do not doubt it is the publishers who put in those clauses. But as Bernhard admits, the academic negotiators allow this and think this is perfectly appropriate, I presume for reasons I listed above.   
They can't even imagine opening a negotiation with the statement: all will be public. Agree, or stuff your subscriptions 

    

A lack of transparency is one thing, but I think the bigger thing is bundling. Shifting the bundle from one side of the bed (subscriptions) to the other (authoring) will, to my mind, keep market forces from driving efficiency and lowering costs in scholarly communications. I wrote some thoughts on this last year to encourage some new thinking which I think is sorely needed. http://blogs.lse.ac.uk/impactofsocialsciences/2017/10/24/its-time-for-pushmi-pullyu-open-access-servicing-the-distinct-needs-of-readers-and-authors/ 

    

No question that it is the publishers that insist on the NDAs, and librarians that (reluctantly, but sadly nearly invariably) agree to them. Freedom of Information requests then fail on grounds of commercial confidentiality. Leonid is right - librarians need to be much more assertive in their negotiations with publishers.  
  
Overall, a really interesting article. Thank you Richard! 

    

Leonid, I'm sorry, but you have no idea what you're talking about. As I said, I have deep experience in negotiating license agreements with publishers. I've been doing so for 25 years. I've been hired by organizations to train their employees in negotiating those licenses. I've written a book that deals substantially with the negotiation of licenses with publishers. I'll say it again: those who negotiate these contracts on the customer side do NOT typically see confidentiality clauses as "perfectly appropriate"; on the contrary, they routinely seek to negotiate confidentiality clauses out of the contracts, and we never put them in. (Bernhard is also mistaken in his assertion that confidentiality is typically introduced at the end of the negotiation process. I have never once seen that to be the case; in every license I've negotiated that involved a confidentiality clause--and that's the great majority of them--that clause has been included in the standard version, the one that is offered by the publisher at the beginning of the process. This may be different in the case of national deals in which the license itself is being written as part of the negotiation process, and that may be what Bernhard is referring to, but it is most certainly not the case when it comes to institutional licenses.) 

    

My confusion is - when there is no NDA - why the hesitancy (refusal) to disclose? 

    

Where exactly did I admit that "the academic negotiators allow this and think this is perfectly appropriate"? I've described that I'm doing just the opposite. 

    

Rick, I was referring to the procedures I know, where a written license is something that comes up in the end. We first speak about the content etc. and the price. Maybe that's not a good idea (defintely in the light of the experience with the 2016/2017 contract), but it's common practice. 

    

Bernhard -- yes, my apologies. I failed to notice that you were referring to a situation in which the pricing part of the negotiation is completely separate from the license negotiation, and comes first. In my experience, the two negotiations have always been conducted at the same time, or at least as part of the same general negotiation process. But my experience is all at the level of a single institution; I've never negotiated a consortial or national license. 

    

While not discounting the issue of transparency, there are a few clarifications I would like to make about these agreements.   
First, we have to acknowledge that hybrid publishing is rampant and is now occurring outside of any central, institutional agreement; this means that there is an additional revenue stream, outside subscription revenues, flowing from research budgets via institutions to the large traditional publishers, unmonitored and unchecked. So, as a first step, these new transformational agreements allow institutions to take back control of the payment streams, which is a precondition for building a strong negotiating position for the next steps in the transition. Libraries and consortia have already begun to leverage that stronger position with the aim of achieving greater transparency (see below).   
  
Secondly, it should be stated that these agreements bring enormous potential for accelerating the transition to open access as they take the first, essential step of moving money away from the subscription system and initiate a new publication-based agreement type. They are based on the understanding that spending money on subscriptions is not a good use of taxpayers money, as it constitutes an investment in an atavistic business model that does not serve the needs of 21st century researchers.  
  
For further clarification, please let me refer you to two documents published by the ESAC initiative in which institutions articulated their concept of these agreements, e.g. that they are to be considered pilots which should lead to a solely publication driven model with no access based costs. And they pointed out that “Offsetting implies the opportunity to overcome dysfunctionalities as known from the current subscription system and to improve the business for scholarly publishing in terms of transparency and efficiency rather than to perpetuate it.”  
  
Please find the ESAC documents here:  
http://esac-initiative.org/offsetting/  
http://esac-initiative.org/wp-content/uploads/2016/05/esac_offsetting_joint_understanding_offsetting.pdf  
  
The first step towards transparency was to collect the article data from the agreements on the Open APC platform and, in the case of Springer Compact, relate them to the total numbers of hybrid and subscription articles in a given journals:  
https://treemaps.intact-project.org/apcdata/offsetting-coverage/  
The method and insights are described in this blog post:  
https://intact-project.org/general/openapc/2018/03/22/offsetting-coverage/  
It is right to have a closer look at the new agreements, but only focusing on transparency does not go far enough; meeting all the challenges involved with the open access transition is much more complex. 

    

Now that we determined that Leonid is wrong about everything and has no clue what he is talking about, now what?  
Didn't the experts just admit that unqualified public should stays out of the complicated negotiation business which is best left to professionals? It is really like with Open Access, the policies are done behind the scientists' back because what do they know.   
  
My main point, that transparency should be a precondition for a negotiation with publishers from the beginning, must be so out there that the experts chose not to pay any attention to it.   
Bernhard, as I said, being rude and putting me in my place might impress Elsevier(they describe me as "toxic individual")and your FZ Jülich director (let me just say: HBP), but how is this helpful to your DEAL at hand?  
All you DEAL people keep saying is: shut up, leave this to us, we know what we are doing. I asked about the details of Elsevier editorial boycott (ie, do they still peer review?), was told to get lost, it's secret.  
Well, reading Richard's post I am not so sure this secrecy is the best way.   


    

Reply to Kai Geschuhn of Max Planck Society (MPG)  
Dear Kai,  
not all research institutions are in the cushy position MPG is in, ie. not knowing where to put all that bombastic money MPG has. Those deals MPG does with publishers, both subscriptions and OA ones like Frontiers, is not something most other research institutions can match. They can't afford it, even if they do love OA very much.  
See above Richard's point of affordability.   
Speaking of hybrid OA: MPG as elite institution expects its directors to publish in hybrid journals like Nature and Cell, I believe... 

    

Lisa you say:   
  
_My confusion is - when there is no NDA - why the hesitancy (refusal) to disclose?_  
  
Let me respond by quoting from the article:  
  
"When I asked FinELib why so few details had been made public even though no NDA had been signed I was told, 'The confidentiality of an agreement is not based on whether or not there is an NDA. At least in Finland the principle of loyalty between contracting parties needs also to be taken into account.'"  
  
And on its website, FinELib cites the Finnish Act on the Openness of Government Activities to support this argument. 

    

Leonid, I'm sorry, I didn't mean to be rude.  
You said either the pulishers or the librarians don't want transparency. That is OK to say.  
Then you assumed, that it's the librarians. That's OK as well, as an assumption. Personally, I would stop at that point and ask if someone has a clue.  
But further to that, you speculated about the librarians' reasons and state that their reasons aren't good ones. That's weird, because you rely on assumptions. I would refrain from acting so because I felt that I would disgraces myself.  
  
Then you received two answers of people who actually know what's the case. Why do you attack me for telling you the facts? 

    

Lisa and Richard, I don't understand that as well. 

    

Excellent analysis and discussion about a broken system. The negotiators are using other people’s money (taxpayers) to prop up an oligopoly that is makings profits on a system that is no longer fit for purpose.  
  
Taxpayers money is being used to publish research funded by taxpayers, thus the agreements should be published as a matter of duty to the public. For OA, publish the cost of the APC in the metadata for the article. This would be transparent and can be harvested.  
  
For university libraries with subscriptions, display the cost of the subscription every time someone accesses the journal in question. Transparency! 

    

Something I have wondered is whether some of the most recent set of negotiations, through DEAL and Couperin, have seen academia offer terms that can never be accepted by the publishers. Rather than cancelling, the universities are positioned as having tried to find a middle ground. This could ultimately be more about strategic communications to faculty members than a realistic effort to reach agreement. 

    

I believe Roger is raising a very good point here. If that is the case though, I wonder what the next step is with this strategy ... 

    

Thank you for commenting Kai Geschuhn.   
  
I am not sure why you say that I only focused on transparency. And it worries me that you seem inclined to dismiss transparency as unimportant (or not very important). It also worries me that you seem to be implying that “meeting all the challenges involved with the open access transition” is too complex to allow the wider research community and taxpayers to be properly informed about the details.  
  
I do hear what you say about transitions, pilots and taking back control etc. But for the life of me I cannot see how what is happening right now will do anything but lock in legacy publishers and their excessive pricing to the new OA environment, for all the reasons I state in my post.   
  
But let’s hope you get to prove me wrong! 

    

If one were pursuing such a strategy, which a DEAL leader has denies and I have accepted his denial, one would simply allow access to end without ever "cancelling," believing that paid access is no longer needed. 

    

To further confuse the situation, I received an email yesterday (30th March) from what I believe to be a reliable source saying that while a public announcement has been made about the deal between Springer Nature and VSNU the contract has yet to be signed. I have asked VSNU and Springer Nature for clarification. 

    

Richard - great article - though I have a quibble with one of your comments.  
  
You wrote "The concern must be, however, that they [scholar led OA journals] will experience sustainability problems. But I am sure there are solutions to these problems."  
  
How can you be sure? I'm currently president of the Canadian Economics Association, which publishes the Canadian Journal of Economics. I can't imagine how the journal would be sustainable without subscription revenue - typesetting, copyediting, hosting, management etc all costs money, many of our authors have very little research funding, and people are just not that willing to give of their time. 

    

1/2  
  
Hi Frances,  
  
Thanks for your comment.  
  
Let me respond to your question in this way: What I think everyone agrees on is that it costs money to publish research papers. They invariably disagree (often bitterly) about what this cost is, or should be, but I think no one argues that it is costless.  
  
You don’t state how much it costs to run your journal, but you say you cannot imagine how it could be sustainable without subscription revenues. From this, I assume you believe that the subscription model is the most suitable one for scholarly journals (although I think your journal does offer a $3,000 OA option).   
  
By contrast, most OA advocates believe that scholarly journals should abandon subscriptions and fund themselves by means of author fees or, increasingly, by means of institutions bulk buying APCs courtesy of OA Big Deals.   
  
Given the benefits that open access provides, I think it makes sense to redirect money from subscription-based publishing to OA publishing, with the aim of eventually moving to an all-OA environment. And this is what we see happening today.   
  
However, I believe that both the subscription and APC models cost the taxpayer more than is necessary, or warranted. To my mind, therefore, neither of these models is entirely satisfactory.   
  
I also believe it should be a serious concern that those without access to APC funding (an issue you highlight) – either as individuals or courtesy of an institutional OA Big Deal – will find it increasingly difficult to get published as scholarly communication moves closer and closer to an all-OA environment.   
  
It is for this reason (amongst others) that unhappiness with the APC model has grown, and led to a new interest in OA journals that charge neither authors nor readers but fund themselves by other means. These are normally referred to as platinum OA journals, and one example is _Discrete Analysis_.  
  
Possible sources of revenue for platinum OA journals include educational grants, sponsorship, government funding and charitable donations etc. The challenge such journals face, however, is that these kinds of revenue streams are less secure than subscriptions and APCs. Grants run out, and sponsorship and donations are also generally time-limited. As such, platinum journals inevitably have to confront sustainability issues.   
  
On the other hand, of course, these journals can be less costly to run. _Discrete Analysis_ , for instance, is an overlay journal (and so piggybacks on arXiv) and costs just $10 per submission. This cost is currently covered by a grant from Cambridge University, so there is no charge to the author, no charge to the reader, and the running costs are very low. 

    

2/2  
  
But while I acknowledge there are sustainability issues, I think there are solutions. Here is one thought: No one I think disagrees that a lot of money is spent on scholarly communication each year. As such, the money is already in the system. It is increasingly inadequate, but since publishers are overpricing for their services, and the source of much of this money is the taxpayer, the responsible thing to do is to seek to lower costs.   
  
The problem is that in order to achieve a fast transition to OA the money is increasingly being redirected not to new, low-cost, innovative OA journals like _Discrete Analysis_ , but to legacy publishers. The latter are not only far too expensive, but they lack any incentive to lower their prices, not least because the dominant ones have voracious shareholders (or venture capitalists) to feed.   
  
Thus, the issue becomes one of how one shifts the money already in the system away from expensive legacy publishers to new low-cost, innovative OA solutions.  
  
That governments and funders are now willing to do this is evidenced by the current trend for funders to create their own publishing platforms, as we have seen with Wellcome Open Research, Gates Open Research and HRB Open Research. Most recently, the European Commission has published a call for tenders to develop Open Research Europe.   
  
However, the latter is being done at the same time as the research community is funnelling more and more money to legacy publishers via traditional Big Deals and new non-transparent, clearly overly expensive, OA Big Deals.   
  
The outcome must surely be that costs will increase rather than reduce. Moreover, the money needed to develop better, cheaper, more innovative scholarly publishing solutions could dry up in order to feed the legacy publishers.   
  
And since this is allowing legacy publishers to embed themselves, and their excessive prices, into the new OA environment it is hard to see how the _affordability_ problem the research community faces can be resolved.  
  
Moreover, once the legacy publishers are embedded in the new system it will be far more difficult to recover the situation and resolve the _affordability_ problem. Better by far to seize the nettle today, and stop signing OA Big Deals. 

    

Thanks for these thoughtful comments.   
  
I think in Canada the hope is that the government will be able to fund non-profit gold open access publishers through government grants to publishers and journals. The idea is government grants to journals and publishers, plus research funds, plus the work that is done on a voluntary basis anyways (like reviewing, writing), plus potentially redirection of funds from libraries to researchers (though this is not explicitly on the table), plus a 12 month embargo periods would be enough to make OA feasible (see e.g. https://www.calj-acrs.ca/news/reminder-important-and-urgent-update-future-sshrc-funding-journals)  
  
What makes it particularly interesting in Canada, however, is that we're a small research community highly integrated into a very large one. If our journal, the CJE, was to move to gold-standard open access, the gainers could be all of the libraries who don't have to pay for a CJE subscription any more (I said "could" rather than "will" because given the non-transparency in journal pricing, it's not obvious that would happen). Most of those libraries are outside Canada. There's no mechanism for them to compensate the CJE. Likewise, since most of the journals Canadian libraries subscribe to are based outside the country, a unilateral move towards open access by Canadian journals isn't going to free up a lot of library funds, so there's no funds there to compensate Canadian researchers. The Big Deal might seem like the solution here - your post explains very convincingly why it isn't.  
  
Economics is also a unique discipline. It's strongly hierarchical, so much so that publications in low-ranked journals have *negative* reputational effects. Status is everything, and a journal's publisher signals its status. If CJE was to move to a non-profit Canadian open access publisher, would we still be taken as seriously? Perhaps the answer to that question is yes, but it's a big risk to take.  
  
Economics content also has science-level publication costs (lots of tables, figures, equations, to typeset, authors who need a lot of copy editing) without science-level research funding. This makes the government grants+voluntary scholarly contributions model more challenging.  
  
I get that there are huge problems with the status quo. But sometimes I wonder if the best solution isn't something far more radical - like getting rid of journals entirely, and use some other mechanism to assess the quality of content e.g. blog comments, author's reputation, conference presentations, grant funding, external rating systems by, e.g., the academic equivalent of Roger Ebert or Rotten Tomatoes, etc. 

    

Negotiating national deals with journal publishers is tough! The negotiations are not like a haggle in the market place. There is no alternative vendor for unique journal content and no alternative (ideal) vendor for the publication of an OA Gold Article. Library consortia have responded to a growth in Gold OA, by negotiating offset deals. While by no means perfect, without the deals, the cost would be significantly more.  
In my experience, library consortia always resist NDAs. However, publicly discussing the details of a negotiation is not professional and would not necessarily work in the best interest of a consortiums members.  
Please also not that library consortia via ICOLC http://icolc.net/ do share information and support each other. 

    

What I find odd here is that the Program Manager Open Access at VSNU responded to this post by saying that she couldn't agree with me more about the need for transparency in OA Big Deals.   
  
Yet VSNU has not responded to my last email and appears to have made no attempt answer the questions I sent to them.  
  
I find it very hard, therefore, to believe that there is any real commitment to transparency at VSNU. 

    

One of the big Elephants in the room has not been mentioned so far (or I missed it, sorry in that case): already now, when they only concern reading, dropping subscriptions has been very difficult. With walking away not being an option, publishers have essentially been able to charge what they want. That's when the only issue with a lack of subscriptions is a few additional keystrokes, or an email to the author.  
  
With Big Deals for *publishing* the issues ensuing with no contract become not being able to publish, i.e., no funding, no promotion, no tenure, no job. In other words, libraries will be in an even worse negotiation position than now. Faculty really would litterally set the library on fire if they canceled a *publishing* deal.  
  
Why would libraries willingly do this to themselves? 

    

You raise a good point Björn, and as I recall it was a point made at the Couperin meeting earlier this year.   
  
One of the questions I put to VSNU that I have received no answer to was this:  
  
_What happens if an organisation like VSNU agrees one of these OA Big Deals with a large legacy publisher and then when it comes up for renewal cannot agree on pricing for the new one. Much has been made of the fact that researchers can get access to journal articles if a subscription Big Deal is not renewed, but what happens if an OA Big Deal fails? Researchers will presumably struggle to pay to publish their papers and so are more vulnerable?_

    

Demands for greater transparency in Big Deals with scholarly publishers continue to grow: Finnish researchers have made a Freedom of Information (FOI) request to FinELib, in accordance with the Finnish Freedom of Information Act (“Julkisuuslaki”).   
  
_"In particular, we request the full contract texts and the total cost information per subscribing institution and per year, as specified in the contracts for all recent deals whose terms are starting from the beginning of 2018. These include, at least, the deals with Emerald (journal package) and IEEE (IEL database) and with Wiley-Blackwell (the 2014 Full Collection), American Chemical Society (journal package), OVID (LWW journal package) and Springer (SpringerCompact journal package)."_