Making a transformative deal with DEAL or… How 51 pages of contract are needed to replace subscriptions

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 page1.

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 literature2. But beyond the figures, the nature of the contracts and their concrete provisions are little discussed, outside of limited circles, notably in library & information sciences3.

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 agreement

At 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 “Read and Publish” 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&P agreement is in fact one contract which overlays four contracts between the parties, named as follows :

  1. Fully Open Access Publishing
  2. Hybrid Publishing
  3. DEAL Journal Archives
  4. Reading Access

Let’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 & 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 publishing

But 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 increase4. 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 fee5 of €2,750 for any research article in a hybrid journal published by Springer, signed without limit with Wiley, was communicated6. 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 » (RF) as the product of the number of articles estimated to be published by €2750, that is €26,125,0007. 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 journals8.

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 & 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 case9. 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..

  1. 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 []
  2. According to this presentation by the European University Association, more than one billion euros a year for its members, including 700 millions for journals []
  3. Typically the section “business models” of the Scholarly Kitchen website. []
  4. 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). []
  5. 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.” []
  6. 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 []
  7. I do not go into detail here about the type of article and in particular “Non Research Articles”, the price of which is €917 []
  8. Notably by the shift of corresponding author from a foreign researcher to a German one. []
  9. 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 []

The Coming of Age of Open Access (I) or… Where are the alternative journals 18 years after the BOAI?

For most of us, February 14th is Valentine’s Day; for open access activists and lovers, It is also the celebration of the BOAI anniversary. It was 18 years ago, they were sixteen, meeting in Budapest in December 2001. Far from agreeing on everything, yet they co-signed a landmark declaration published on February 14th, 2002. 18 years later, it is the coming of age for Open Access, a time to look at what has been changed, redifined, gained and missed. To start with, we have to remember that the BOAI really defined open access, as a virtually unlimited re-use of academic documents:

By “open access” to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited ((BOAI, 14th February 2002)).”

They also put together what was largely separated before, the soon named “green road” and “gold road”. Nevertheless, contrary to the popular belief, the supposed “original version” of the BOAI reproduced in lots of copies on the web, they were not calling them “self-archiving” and “open access journals”. Indeed, the reference above is not the true original version, but one slightly changed in the summer of 2002. The former one, which can be seen on the Web Archive, stated : “Open access to peer-reviewed journal literature is the goal. Self-archiving (I.) and a new generation of open-access alternative journals (II.) are the ways to attain this goal. So following BOAI, we will deal with this coming of age in two successive posts : this first one will focus on alternative journals, the second one on the triumph of organized archives over self-archiving.

A revolution with no defined business model

How are described these alternative journals? Why and how are they alternative and to what? The main answer is given in a long paragraph of the BOAI: it is our actual starting point, from which the history of these journals shall be analyzed. To ease the reading, we have divided it in three parts.

Second, scholars need the means to launch a new generation of alternative journals committed to open access, and to help existing journals that elect to make the transition to open access.

The two ways for journals to commit were already happening at the beginning of the century. On the one hand, very early electronic journals, often without publisher but what we now call a platform, didn’t go the subscription way and were established as free for readers. On the other, the 2001 PLOS letter/petition pushed publishers to change their ways and open their content, with lots of signees but few positive answers apart from BMC. So the BOAI reminds them that they could still “filp” to open access. But what does it mean exactly?

Because journal articles should be disseminated as widely as possible, these new journals will no longer invoke copyright to restrict access to and use of the material they publish. Instead they will use copyright and other tools to ensure permanent open access to all the articles they publish. Because price is a barrier to access, these new journals will not charge subscription or access fees, and will turn to other methods for covering their expenses.”

The alternativeness doesn’t come from the way journals should be run (editorial boards, scope, peer review) but from their economic model. Journals are qualified as “alternative” because they shouldn’t anymore rely on the property of content and subscription as the main route to pay for journal expenses (and profit). More than that, they would have extra costs as they have to maintain open access through time. With the vanishing of current and future revenues, on what shall the new business model rest?

There are many alternative sources of funds for this purpose, including the foundations and governments that fund research, the universities and laboratories that employ researchers, endowments set up by discipline or institution, friends of the cause of open access, profits from the sale of add-ons to the basic texts, funds freed up by the demise or cancellation of journals charging traditional subscription or access fees, or even contributions from the researchers themselves. There is no need to favor one of these solutions over the others for all disciplines or nations, and no need to stop looking for other, creative alternatives.

This is probably the most important part of the whole BOAI declaration, besides the open acess definition. Three main points should be retained: firstly, the idea of a diversity of sources of income, in an optimistic vision of the means of financing a journal undoubtedly fuelled by the success of the open source software movement. Secondly, this diversity is reinforced by the final sentence which supports the absence of a “one best way” even when the exploration of possibilities would have fully taken place. Finally, thirdly, the idea of recourse to a payment by authors is tconceived as a last resort (“or even”). In other words, not only does the alternative economic model remained unclear and uncertain, but the paying author’s proposal was not considered a priority at all.

The stories of 11 pioneers

But with such vagueness, who then ventured to go on the alternative and how did they settle their journals once launched? On the George Soros site, funder of the BOAI meeting through the Open Society Institute, a very short list of 11 entities was then available, even if it was supposed to be only examples1.

11 journals

So, a first way to fulfill the promise made by the title of this post is to investigate the trajectory of these 11 journals, or rather publication websites, so great is their diversity. We will treat them in groups, according to their destiny:

  1. Still free of charge mathematicians & computer scientists journals: Algebraic & Geometric Topology and Geometry & Topology were respectively founded in 1997 and 2001, have always published open access articles and are still community-based journals, published by MSP, which puts a very strong anti-APC statement on its website. Document Mathematica is the first journal of the Elibm platform, founded in 1996, which acts as a repository for maths proceedings and journals, free of charge for readers and authors. JMLR was created in 2001 in an independance movement by 40 members of the editorial board of Machine Learning, then owned by Kluwer and is a always hard-to-believe from the outside $10 per article cost kind of journal – thanks to huge volunteer work, Latex, open source software, no fancy website and outsourced micropublishing for paper versions with no financial exchange.
  2. Still owned by societies, but have switched to APC: The New Journal of physics founded in 1998, now published by IOP with an APC of 1630 €. It was a part of some “offset deals” (Austria, UK) and is still one of the journals of the SCOAP3 agreement. The Journal of Insect Science was supported by the University of Arizona, launched in 2001, it changed with the death of its editor-in-chief in 2014, owned by a society but published by Oxford with a 1176 € APC.
  3. Bought by Springer platforms: Living Reviews in Relativity was founded in 1998 by a Max Planck institute, it published only reviews, which were “living” as authors could update them as new literature could be taken into account. It was sold to Springer in 2015, which kept the same formula with, remarkably, no APC . The trajectory of BioMedCentral is probably well-known to readers, let us just remind that it was founded in 2000, cosigned BOAI through Jan Velterop, its then director, was the first “big” publisher to bet on APC and was finally sold by its owner, Vitek Tracz, to Springer in 2008.
  4. Popularizers of APC and inventors of the megajournal: PLOS didn’t really exist as a publishing place at the time of the BOAI. Its call/letter for Open Access the year before as almost only BMC responded positively. But they were already able to secure funds, cosigned BOAI through Michael Eisen and soon lauched PLOS Biology and then, in 2006, PLOS ONE which was the first megajournal, which climbed to more than 30,000 articles a year, invented new forms of peer review and supported article-level metrics againts journal-based metrics . It was also the launch of APC as a standard way to provide Open Access for large communities.
  5. The Platform that used to promote open access among publishers: Highwire has never been a journal nor a platform-journal, but rather a hosting service which develops tools and software for publishers. Founded in 1995 and based at Standford University, it used to be the largest archive of free full-text science on Earth with more than 2,4 million articles. Bought by an equity fund in 2014 (a minority share is still owned by Stanford), this “free texts” webpage stopped its counting on the 25th March, 2015 and the webpage was not maintained after 2018.
  6. Terminated by its learned society: Psycoloquy had been launched and supported by the American Psychological Association, with Stevan Harnad at its helm, who translated some of the features he developed in his previous journal, BBS, notably open peer commentary, into the electronic form. It stopped publishing new articles by 2002.

Other journals or platforms could have been indicated as examples in early 2002. One can notably think of Scielo which was already working very well in South America, Erudit was growing up in Quebec as well as Revues.org in France. But the BOAI was rather focused on STM and English-language journals, and the alternative journals of the BOAI are also located within a world already dominated by an oligopoly of big publishers that was to be changed or at least challenged. Despite these limitations, the 11 stories nevertheless show the diversity of actual trajectories, the adoption of economic models that had yet to be defined and implemented and the adoption of the alternative by some big publishers.

From Gold to Diamond:
when the alternative remains alternative

Above and beyond these examples, what trends could be drawn from these last 18 years? We have to consider a wide range of moves from public policies, learned societies, universities & libraries, research funders and finally of course publishers in order to give a second answer to the titile of this post. Of course, the first evolution is the invention of a locution, soon after the BOAI : open access journal, which replaced the “alternative” ones.

Then, as with 4 of the 11 listed, we observed a massive rise of the APC model, from BMC and PLOS pioneers. The idea that authors would accept to pay to publish was not to be taken for granted, would it be in principle or in practice with questions about the accounting circuit, the actual source of funding (authors, labs, departments, universities…), the level of price, etc. And still in some disciplines, being forced to pay is putting a low-quality stamp on the output. The Wellcome Trust in the UK and the ERC programs in the European Union played a huge role in experimenting with the possibility of paying APC through grants, which made them a “normal cost”, especially in well-granted disciplines (biomedecine, physics…). The UK official public policy, after the Finch Report in 2012, also injected money to pay for APCs.

It not only fueled the growth of relatively new publishers – BMC, PLOS but also MDPI, Frontiers in, Hindawi – but pushed “traditional” big publishers to adopt APC and make their journals “hybrid”, with a “basic funding” by subscription and “extra funding” through APC. Springer began its “Open Choice Program” in 2007, which name deeply reflects the liberal-market vision of open access. These two evolutions led to very harsh critiques of the whole Gold OA project : on the one hand, it raised the question of the birth of predatory publishing through APC ; on the other hand, hybrids meant double dipping and the deepening of the serial crisis.

Hybrid journals were conceived as transition tools to open access, as the then director of SPARC Europe theorized them2 So these private and public policies of APC funding were conceived as a way to reach a tipping point after which the Open Access, now renamed full open access journal, would happen. How naive wrote Richard Poynder in a recent essay3! Some powerful actors came to the same conclusion, so they recently try to impose new radical changes in the funding of journals, most notably Max Planck Gesellschaft in 2015, then the now famous Coalition S, which aim is to accelerate the transition to open access by in fact killing the subscription model, having a CC-BY license to authors for content. Does this sound familiar?

So it seems to go full circle: almost twenty years later, trying to get rid of the traditional economic modela for journals and to do that, talking with big publishers in order to sign “transformative agreements”. Open access has gone mainstream, Elsevier even now present open access as a standard. If changes happened, it was more on the way journals were run, most notably open peer review4. But wait a minute, if the alternative has gone mainstream, where is the new alternative? In fact, the support and success of the APC modeal made the impression on a lot of commentors and actors that the Gold way was now the equivalent of an author-payor model. That led some activists to coin new names for “no APC journals”. Would it be Diamond or Platinium, it meant that it was also free for authors, and not only readers.

Scielo, Erudit, Open Edition were already mentioned, just as 5 of our 11 pioneers. But we could add Open Library of Humanities or Redalyc as “big platforms” for journals5. They are the majority, as no APC journals still represents more than 70% of entries in the DOAJ, their business models are diverse, from bricolage to strong institutional support, just like the BOAI predicted. So the alternative is still alternative, though it has vastly grown in the last 18 years. Getting to adulthood, we will see whether OA journals coexist into two genres, non-APC and APC, or whether one of them in not sustanaible in the long run. Unless, of course, the other open access road gets us into a post-journal world through preprint servers and open archives. To be continued…

  1. this list didn’t evolve a lot in the next two years, Highwire and PLOS were removed, while two MDPI journals were added []
  2. Prosser, David C. “From here to there: a proposed mechanism for transforming journals from closed to open access.” Learned publishing 16.3 (2003): 163-166. []
  3. Poynder, Richard. “Open access: Could defeat be snatched from the jaws of victory?.” (2019). []
  4. Which means lots of different things, see Ross-Hellauer, Tony. “What is open peer review? A systematic review.F1000Research 6 (2017). []
  5. Not to mention the ones for books which are catalogued into the DOAB. []