OA and Transformative Agreements at the Frankfurt Book Fair

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Science Europe’s cOAlition S has over the past year made significant strides in its “Plan S” project, which is about accelerating the move from subscription-based science publishing towards Open Access publishing, including the Gold OA business model (where authors, their institutions or their funding agencies pay for article publishing charges or APCs so that the public can read the articles without a charge). Plan S has an ambitious goal of realizing a fully open publication process for public or private funded research papers by 2021, and includes an impressive number of funding agencies, including Science Europe itself (representing EU agencies), a number of national funders from the UK, the Netherlands, Sweden and the like, and private funders such as the Gates Foundation and Wellcome Trust.

There are a number of ways that authors and publishers can meet Plan S targets, including by deposit in certain repositories (with no embargo periods), or publication in a “fully OA” journal (excluding “hybrid” journals). These approaches are clear cut and will no doubt work for many authors and journals.

Plan S also supports institutions and publishers entering into “Transformative Agreements” which involve a transition from a mostly subscription-based model to a full OA model (by 2024), and it has been the work and negotiations around such agreements that have captured the attention of university libraries and scholarly journal publishers. This began with the January 2019 announcement by Wiley and Projekt Deal (led by Max Planck) for the German Projekt Deal consortium arrangement, although it is true that there have been national consortium arrangements dealing with transitions to OA before Plan S such as the VSNU for the Netherlands and Bibsam for Sweden. The Wiley-Deal negotiation was featured in a CCC-sponsored panel at the Book Fair this year with Wiley senior counsel Deirdre Silver and Max Planck negotiator Dr. Ralf Schimmer, where both speakers emphasized the need for thoughtful negotiation and understanding of the key drivers and concerns of both parties.

That afternoon discussion followed a Society for Scholarly Publishing (SSP) morning breakfast panel discussion (with the Scholarly Kitchen chefs) on “hot topics” which devoted probably 80% of its time on Transformative Agreements and the question of flexibility—given the huge variations among scholarly societies in terms of discipline and funding.

I was delighted to participate in a later CCC panel that also included  Susie Winter (Springer Nature), Jim Milne (American Chemical Society) and Sybille Geisenheyner (Royal Society of Chemistry), which gave us a half-hour to talk about specific negotiations and for me to speak for a few minutes about the overall legal landscape (transcript and tape of the panel can be found at the CCC BeyondTheBook site). In the picture below I can be found on the right thumbing through my one page of notes.

What I tried to focus on in my part of the panel was the fundamental elements that make up a Plan S-style Transformative Agreement (which now includes the University of California- Cambridge University Press deal), and to note some difficulties on the legal side. As I see it the key elements for Transformative Agreements include:

  • A clear commitment to transition
  • A phased approach in value assignment from mostly subscription-based to OA and generally a reduction in costs
  • In OA publishing, the retention of copyright by the authors and a requirement to use a CC license (preference for CC BY, the most flexible license from a usage perspective)
  • Transparency & reporting on costs, pricing models & progress towards goals
  • Emphasis on standards such as ORCID, text standards & protocols
  • Workflow requirements (re APC processing).

A great deal of work has been done by Science Europe to identify these elements and to support negotiation in Transformative Agreements, and a registry has been set up to index such agreements (see here). However it must be said that there are many variations even among those agreements listed, and much of the detail around transparency, costs and workflows are not yet readily evident. It is perhaps for that reason that ALPSP and Wellcome Trust recently announced their collaboration on model agreements, which is very welcome (see here).

There are sizable problems remaining concerning Transformative Agreements, including the extent to which publishers wish to be transparent towards their competitors about pricing issues (or even the extent to which they are permitted to be, from an antitrust and competition law perspective), the degree of funding across disciplines, the variability of research outputs and research intensiveness across institutions (which suggests that some institutions will bear a larger share of publishing costs than they do now, as noted in the August 2019 Inside Higher Education article about the Wiley-DEAL contract). Another fundamental problem, noted in the SSP breakfast discussion, is the simple fact that negotiations take time and that institutions may well need to prioritize their negotiation resources, leaving smaller publishers in a bottleneck scenario.

Even with these complexities and concerns, however, there is no question that the transition in business models for scholarly publishing towards OA has been accelerating faster over this past year than in the prior five years, and if stakeholders such as cOAlition S remain engaged on implementation this will have considerably more impact on the scholarly communication infrastructure than debates on policies and principles.

Mark Seeley

Author: Mark Seeley

Mark Seeley consults on science publishing and legal issues through SciPubLaw LLC (http://scipublaw.com), and comments regularly on publishing, licensing and copyright issues. Seeley retired as of January 2018 from his position as Senior Vice President & General Counsel for the science publisher and information analytics provider Elsevier. Currently he serves on the Board of Directors for the Copyright Clearance Center, and is a member of the Copyright Society of the USA and the Society for Scholarly Publishing. Previously Seeley served on the Copyright Committees of both the International STM Association (from 2004-2016 as chair) and the Association of American Publishers. He is currently teaching international copyright law as adjunct faculty at Suffolk University Law School in Boston.

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