Beyond slingshots: Better tools for negotiating with Goliaths

In negotiations with journal publishers, research institutions try for a “big flip.”

By on / Crisis Negotiations

When Alexandra Elbakyan was growing up in Kazakhstan, books, music, and movies were expensive. To access them, she learned how to pirate intellectual property and eventually came to believe that it should be available to all.

After enrolling in graduate school in Russia, Elbakyan began pirating journal articles for herself and other researchers who couldn’t afford them. She amassed so many articles that in 2012, she created Sci-Hub, an online database of pirated scholarly articles. Elbakyan, who studies the history of science at an undisclosed location in Russia, obtains the articles by using library passwords, some of them apparently stolen, that others share with her. Sci-Hub now contains about 50 million stolen scholarly journal articles and is used all over the world by researchers who either can’t or don’t want to pay the fees that academic publishers charge to download the articles.

Netherlands-based Elsevier, one of the world’s biggest scientific publishers, successfully sued Elbakyan for copyright infringement in the United States. She was ordered to pay Elsevier $15 million and shut down Sci-Hub but has refused to abide by the ruling and remains beyond the reach of U.S. law in Russia.

Many consider Elbakyan to be a thief, but she views herself as an activist. “All content should be copied without restriction,” she recently told the Washington Post.

However you view Elbakyan’s actions, it’s clear that they have shined a light on an issue that’s a problem for many researchers and institutions: the high costs of accessing scientific research articles.

When a powerful party is preventing them from meeting their goals, some people give up. Others react in a way that violates the law or their own code of ethics. Still others work doggedly toward creative solutions. The challenge of improving access to academic journal articles worldwide illuminates the ways in which “Davids” can negotiate effectively with “Goliaths”—without resorting to unethical or illegal behavior.

A lopsided model

While newspapers and magazines have struggled to find ways to profit from their content in the Internet era, the small number of academic publishers that produce the thousands of leading peer-reviewed scientific research journals have managed to increase their profits exponentially. The largest journal publishers—including Elsevier, Springer, and Wiley—collectively earned $10 billion in 2015, primarily from research libraries, achieving profit margins of 35% or more, the New York Times reports.

Many researchers, universities, and libraries believe this success comes at their expense. Under the current system, researchers submit their articles to publishers, which enlist other researchers to review and edit the work for free. Publishers take ownership of accepted articles without paying authors for their work. The publishers then sell journal subscriptions to universities and the federal government for steep fees— ranging from $2,000 to $35,000 annually per journal, or millions of dollars for bundled subscriptions, according to the Times. The publishers keep an ironclad paywall in place for most products and grow profits by launching new journals and raising rates. Andreas Degkwitz, the head librarian of Humboldt University in Germany, told Science that about 60% of the library’s total budget is used to pay just three journal publishers—Elsevier, Wiley, and SpringerNature.

Scientists such as Elbakyan whose universities can’t afford such subscriptions often have difficulty legally accessing the research they need to conduct their work. And in nations where scientific research is taxpayer funded, citizens theoretically pay twice to read journal articles: first through their taxes, and a second time when paying publishers’ downloading fees, usually about $35 per article. In response to complaints about high fees, publishers respond that producing top- quality scientific articles is an expensive business.

Early remedies

Universities and libraries have long said they have little leverage in price negotiations with academic-journal publishers. Unwilling to deprive their researchers of the knowledge they need to do their work, institutions have been unable to make a credible threat to walk away from the bargaining table. But they and other groups have been rebelling against the system in other ways.

To begin with, thousands of new so-called open-access research journals have sprung up that follow a different business model. Instead of charging subscribers for content, they charge researchers to publish their papers—about $1,000, in some cases—and then post them for free online. Large academic publishers such as Elsevier have followed suit by launching new open-access journals and charging the authors fees that are about double those charged by start-ups, according to the Post. Yet, most prestigious journals remain behind a paywall.

In 2012, Harvard Library, the largest university library in the world, sent a memo asking the university’s teaching and research staff to submit their manuscripts only to open-access journals and to resign from assisting journals kept behind paywalls, according to the Guardian. Subscription prices from large journal publishers had increased by 145% over six years and were becoming unsustainable, according to the library. But with researchers facing extreme pressure to “publish or perish” in top paywalled journals, the Harvard Library’s requests didn’t seem to gain much traction.

In 2016, then–U.S. president Barack Obama’s Office of Science and Technology began requiring government agencies that provide more than $100 million in research funding to require the final version of the manuscripts they fund to be freely available within a year of publication. Congress has considered passing a similar measure.

Unwilling to deprive their researchers of the knowledge they need to do their work, institutions have been unable to make a credible threat to walk away from the bargaining table.

Banding together

In 2015, more than 150 German libraries, universities, and research institutions united to form Project DEAL, a consortium devoted to negotiating a new business model with academic-journal publishers for all members, Science reports. Rather than buying subscriptions for individual journals, consortium members want to pay publishers an annual fee that covers the publication costs of all papers whose first authors are based at German institutions. This fee should be set by multiplying the number of papers with Germany-based first authors by a reasonable price per paper, they say. Project DEAL members want these papers to be available for free worldwide.

Similar coalitions in the Netherlands, Finland, Austria, and the United Kingdom have made comparable demands of publishers, with limited success. In the Netherlands, Elsevier, the largest of the publishers, agreed to make 30% of Dutch- authored papers available for free online by 2018 in exchange for a significant increase in libraries’ annual subscription fees, according to Science. By comparison, Project DEAL in Germany says it’s determined to hold out for 100%—what it calls “the big flip” from the current model.

Following months of negotiation with the German coalition, publishers SpringerNature and Wiley reportedly are coming around to the new model, though they have yet to agree on a reasonable price per article. Elsevier has proven to be a tougher sell. When a negotiation deadline passed without agreement in January 2017, Elsevier let subscriptions lapse at more than 60 German institutions, though it restored their access a month later, when talks resumed,Science reports.

To prompt Elsevier to accept a “big flip,” several large German research institutions have said they are willing to let their Elsevier subscriptions lapse in December if they don’t reach a deal. They are betting that Elsevier would cave in the face of diminishing profits. The institutions’ researchers could get by with accessing articles through interlibrary loan, directly from authors, or from prepublication article-sharing websites—and, perhaps, from illegal sources such as Sci-Hub.

Dealing ethically with a behemoth

When facing your own personal Goliath, keep these four tips in mind:

1. Draw attention to your cause.
Harvard Library may have gained power in its negotiations with publishers by calling attention to their skyrocketing fees. Criticizing your counterparts publicly is likely to escalate tensions, however, so you should do so only as a last resort.
2. Flip the system
If you think an existing business model puts you at a distinct disadvantage, brainstorm ways to flip it to create a leveler playing field. Then look for ways your counterpart might benefit from the new model.
3. Team up with other weak parties.
You might not have much negotiating leverage on your own, but you may
be able to increase it significantly by forming a coalition with other parties in your situation. Just be careful to avoid breaking antitrust rules and laws when teaming up with competitors.
4. Seek out powerful allies.
Government agencies and officials, advocacy and watchdog groups, and others may have an interest in helping you address a power imbalance. Look around to see who might help, and try to enlist their backing.

We end with a piece of advice for Goliaths: Remember that most negotiators care intensely about getting a fair deal, independent of their objective outcomes. When you’re the more powerful party in a negotiation, you’ll need to attend to those fairness concerns. The other side could rebel—either inside or outside of the law—if you try to take advantage.

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