{"word_count": 2550, "character_count": 15622}
This post should not have come into existence. In fact, for a long time, "contracts" and "agreements" between publishers and higher education and research consortia have not only been proprietary texts, but filled with confidentiality clauses that prevented them to be disclosed. This culture of secrecy is still there, as the agreement between Springer and DEAL states this on its 45th page ((The agreement is availabe on the Projekt Deal dedcated webpage with its own DOI. Announced at the beginning of the year by both parties, the full agreement was discreetly added in mid-February. Thanks to Quentin Dufour for flagging this document))." Disclosure of agreement It is Publisher’s position that the terms of this Agreement are proprietary, however the Parties have agreed in this case that the Agreement is placed under a Creative Commons CC-BY-ND 4.0 license and may be made public under this license. "Indeed, the pursuit of transparency accompanying the open access movement has led in recent years to disclosing these contracts, highlighting the very large financial sums involved in accessing scientific literature ((According to this presentation by the European University Association, more than one billion euros a year for its members, including 700 millions for journals)). But beyond the figures, the nature of the contracts and their concrete provisions are little discussed, outside of limited circles, notably in library &#38; information sciences ((Typically the section "business models" of the Scholarly Kitchen website.)).The purpose of this post is therefore to propose a first analysis of the structure of this agreement before focusing on its financial part, the most original one, which is supposed to drive the transition to open access. But first we need to describe the two partners of the agreement. On the publisher side, we have Springer, or rather Springer Nature Customer Service Center GmbH. In practice, this means an entity that covers not only Springer and Nature publications, but also BioMed Central and Palgrave McMillan, i.e. more than 2,800 journals. On the customer side, it's a bit more complicated: the negotiator is an intermediary, MPDL Services GmbH , which acts on behalf of the Projekt Deal, which is a consoritum initiated by the Alliance of German Science Organizations to negotiate nationwide transformative “publish and read” agreements with the largest commercial publishers of scholarly journals. The consortium structure therefore complicates the terms of the agreement with Eligible Institutions that can become Members with associated rights and duties.Before entering into the agreement, it is important to add how much the writing itself shows the intensive interpretative work on its terms. As in any contract the key terms are of course defined: "eligible articles" "publishing services" or "open access license" among many others. But one also finds in the agreement no less than 18 occurrences of "For the avoidance of doubt" and 48 of "For clarity", redundancies aimed at limiting the ambivalence of written proposals and injunctions and hints of the carefulness of both parties to limit the risks generated by the agreement.From a simple preamble to a complex folded agreementAt first, things seem really simple, as the preamble states the common aim of the two organizations. In fact, they share the rise of Open Access publications in the BOAI meaning, with its known advantages and underline the scope of this agreement, compared to previous ones."The parties enter this contract with the goal to enable open access publishing of articles from German- funded researches in Springer Nature journals, to make these articles available to the public worldwide, and to provide access for German-funded researchers to most of Springer Nature content. At time of signing, the contract becomes the world’s largest transformative open access agreement, making it possible for over 13,000 articles annually from German-funded researchers to be made immediately available Open Access for use and reuse from the moment of publication, bringing the benefits of maximum visibility, increased usage and citations, and greater and broader impact to researchers across Germany." Yet, the summary of the agreement depicts a complex set of successive services, which highlights the concrete constraints of a "Publish and Read" agreement for such a large consortium. The actual starting date of the agreement is far away, since the institutions have in practice several months to adhere to the terms of the contract and to put in place the necessary infastructures to carry it out. It is only from August 2020 that centralized funding for open access publishing will really kick in. However, researchers from affiliated institutions can already access Springer content from now on. This paradox is resolved if one considers that the R&#38;P agreement is in fact one contract which overlays four contracts between the parties, named as follows : Fully Open Access PublishingHybrid PublishingDEAL Journal ArchivesReading AccessLet's start by looking at the last two, which are the simplest in financial terms. Reading access (p. 31-41) defines the conditions of access to Springer's content, provides for cases in which this service is discontinued - in particular non-payment in connection with the other components, but does not itself contain any financial elements. Reading is therefore provided free of charge for researchers at the member institutions of the DEAL project, as this deal is really a "Publish &#38; Read". The "DEAL journal archives" (p. 27-30) is charged, but for a fixed sum of €3,75 million. It allows the "upgrading" of all the institutions on the journal legacy, a little over 3 million articles, and the constitution of a "dark archive" that can be used during and after the contract. Still, there are some interesting articles in these parts, for example the fact that DEAL can tell Springer to cease reading access to Member institutions if these institutions fail to pay the DEAL operating entity (p. 32). We can also read that the English-language agreement is the one that prevails (p. 40) ; considering that both parties are German and that German Law in Heidelberg applies in case of disagreement, it is very intriguing. Finally, at the opposite of the philosophy of Open Access, there are very strong limitations to the uses of the Archive or current content : access, download and very strict usage in academic courses. In particular, text and data mining for a given Member institution should only be authorized after an addendum is signed (p. 34). It is therefore clear that the already closed content remains paywalled and that the transformational will only applies to future publications.Controlled Gambling on future open access publishingBut how can this transformational aspect be translated into a contract? As we shall see, there is a form of gambling - with certain limits - carried out by both parties in the two contracts at the heart of the scheme, the Fully Open Access Publishing (p. 7-14) and the Hybrid Publishing (p. 15-26). The first has become quite standard - and very close to the contract signed by DEAL with Wiley at the beginning of 2019. It is a centralized payment system with corresponding author recognition and verification, sharing of metadata and financial reporting, all in exchange for some deduction on the price of APCs (p. 14)."For the purposes of calculation of the APC Rates, the list price increases for any Article Processing Charges under these Product Terms will not exceed 3.5% per journal title per year (“Cap”); increases will be calculated based on the 2020 list price. For BMC and certain other Springer titles which are included in the Open Access Journals, Publisher will apply in addition to the Cap a 20% discount, the journals being eligible for such discount will be identified accordingly in the DEAL Journal List. "Price control is therefore very limited: although the reduction on the 'public price' is not negligible, it can quickly be offset by the foreseeable inflation of full OA APC costs charged by Springer. On the one hand, price rise at the 3.5% limit is almost certain, given the "natural" evolution of APCs prices; on the other hand, the current APC price insensitivity pushes us to predict that the number of articles published in full OA APCs will increase ((On these two points, see the remarkable article by Shaun Yong-Seng Khoo, "Article processing charge hyperinflation and price insensitivity: An open access sequel to the serials crisis." Liber Quarterly 29.1 (2019). )). But this is precisely Springer's gamble in signing this type of deal, by quickly making up for the quantity of articles in exchange for a limited reduction in the unit price. And this gamble is all the bigger here, given that its other source of income, under the Hybrid Publishing agreement, may fall in 2021, 2022, or 2023.That is the biggest surprise of this Springer-DEAL agreement. Reading the announcement of the agreement on January 9, 2020, one would have thought that this part of the deal would once again be a copy of the Wiley agreement. Indeed, the fee ((Technically, it is not an APC as stated in the FAQ page: "different from an Article Processing Charge (APC), the PAR fee, paid centrally by participating institutions for each article to appear under the DEAL agreement, covers the cost of the open access publishing services rendered and, to a lesser degree, reading access in Springer Nature subscription journals.")) of €2,750 for any research article in a hybrid journal published by Springer, signed without limit with Wiley, was communicated ((In the Wiley deal, if I understood it correctly, the baseline payment is guaranted, unless it is shown that Wiley technically limits the actual publication of Hybrid OA ; but there is no max limit for the payment of €2,750. per article)). However, it is a very different expenditure scheme that was accepted by both parties (p. 25), represented in the following image. For the year 2020, the amount is based on a "Reference Value&#160;» (RF) as the product of the number of articles estimated to be published by €2750, that is €26,125,000 ((I do not go into detail here about the type of article and in particular "Non Research Articles", the price of which is €917)). The RF does not move during the contract and so very much look like a "subscription price" from the point of view of Springer. Nevertheless, there is a complex real price paid that only partly takes into account the actual number of articles published. In 2020, the minimum invoice is the RF, if more articles are published, the price can go up to 5% more. In 2021, it is a minimum 95% of the RF and up to 10% more than the RF; then, 2022, it is 85% and up to 20% and finally, at DEAL's option, for 2023, it is 75% and up to 30%.On the upper side of the RF, from Springer's point of view, the risk is to publish "too many" Hybrid OA articles. In such a situation, they would "miss" some revenue which would have hypothetically been generated by individual "Open Choice" APC. From DEAL's point of view, it is litteraly an insurance against a growing cost generated by the capture of publications by Springer journals ((Notably by the shift of corresponding author from a foreign researcher to a German one.))."For the avoidance of doubt , Publisher will continue to publish Eligible articles even if the Upper Threshold is met or exceeded. Publisher will never charge any part of the Calculated Total PAR Fee exceeding the Upper Threshold, irrespective of the actual Calculated Total PAR Fee and/or number of Published Articles." If we now look on the other side of the RF, roles are reversed: the minimum invoice is an insurance for Springer if, for whatever reason, German authors don't use the agreement to go on Hybrid OA, that it gets some value back now that reading is free of direct charge. From DEAL's point of view, there is the risk to "pay for nothing" and it could be an incentive to push researchers to use Hybrid OA as it is "already charged", rather than choosing the Full OA road, discounted but limitless as far as costs are concerned.How transformative is the DEAL deal?We can point to four potential or actual transformations from the agreement which runs until the end of 2022 with an option at the discretion of DEAL for 2023. First, obviously, it is the construction of a demanding workflow to regulate all the exchanges of authorship, institutionnal and financial information not only between Springer and DEAL, but also between DEAL operating entity and the Member institutions. Indeed, as with other Publish &#38; Read type contracts, the sums actually paid by the research intensive institutions will be much higher than in the past. and conversely, more teaching or practice-oriented institutions would pay less. What is the cost of such a workflow for both entities? Is it easily scalable for other publishers/consoria? How would some institution react to their growing costs?Second, this agreement raises the issue of researchers' enrolment to open access publishing, even if the money does not seem to come from their own pockets or grants in this case ((The actual source of money for APCs is not addressed at all in the contract, it is probably part of DEAL's internal financial mechanics which are not public to my knowledge)). Will they agree to publish in hybrid OA? Will they, on the other hand, remain insensitive to the total cost of APCs? Will they assume the position of correspondent author more than their foreign colleagues? What will be the associated institutional policies: more obligation to publish in open access or, on the contrary, a logic of individual choice? Answering these questions will make it possible to observe whether, indeed, open access is becoming the norm for German researchers in their publications at Springer.Third, in direct connection with the previous transformation, the parties took calculated risks by signing this agreement. Springer may see its sales fall by between 15% and 20% in 2022 (APC discount at constant volume, minimum Hybrid Publishing price) in the event of failure with researchers, workflow problems or major disagreements within DEAL. Symmetrically, DEAL members risk a significant increase in the total price with a maximum of 20% Hybrid Publishing price and an explosion of full APC OA if production is moved to these journals. Transformative action at constant cost, because there is "enough money in the system"as OA2020 stated in 2015, is therefore not at all guaranteed.Finally remains the question of the state of things at the end of the contract. If all goes well in their view, DEAL will validate the 2023 option, but what happens beyond that? And if they don't, what will be their negotiating power? Will Springer be happy if both OA deals don't have enough success to maintain their currents profits? Will the use of the "flagship journal" listed in the Wiley agreement to put some competition on Springer? Will Springer journals still be predominantly hybrid journals? Will the coalition S ultimatum on the lack of funding for APCs for this type of journals in 2024 be credible? There is nothing in the agreement to give answers to those questions, and in particular there is no commitment from Springer to flip its journals then. So, contrary to the recent ACM Open Model , this agreement does not constitute an irreversible transformation to open access. If things go south, subscriptions could be back at the very heart of the next agreement..