Björn Brembs

The debate over how publishers use the large "non-publication costs"
(Fig. 1) that they incur and academic libraries, mainly, are funding has
been going on for some time now. Above and beyond the cost items we
discuss in our [paper on publication
costs](https://f1000research.com/articles/10-20/v2), it has been
established that [investments in surveillance
technology](https://bjoern.brembs.net/2021/09/algorithmic-employment-decisions-in-academia/)
are also part of the publisher spending academic libraries are
financing. In an informal brief generated by the German
[GFF](https://freiheitsrechte.org/english/), the legal expert who
authored it describes a situation with clear indications that one cost
item which we discuss in the paper has been particularly detrimental for
the scholarly community and the tax payer: lobbyism.

::: {.wp-block-image}
<figure class="aligncenter size-large is-resized">
<a
href="https://bjoern.brembs.net/wp/wp-content/uploads/2021/11/pie.png"><img
src="https://bjoern.brembs.net/wp/wp-content/uploads/2021/11/pie-1024x647.png"
class="wp-image-2333" decoding="async"
srcset="https://bjoern.brembs.net/wp/wp-content/uploads/2021/11/pie-1024x647.png 1024w, https://bjoern.brembs.net/wp/wp-content/uploads/2021/11/pie-300x190.png 300w, https://bjoern.brembs.net/wp/wp-content/uploads/2021/11/pie-768x485.png 768w, https://bjoern.brembs.net/wp/wp-content/uploads/2021/11/pie-50x32.png 50w, https://bjoern.brembs.net/wp/wp-content/uploads/2021/11/pie.png 1516w"
sizes="(max-width: 1024px) 100vw, 1024px" width="648"
alt="non-publication costs" /></a>
<figcaption><strong>Fig. 1</strong>: More than half of an average
scholarly article price goes towards non-publication costs. <a
href="https://f1000research.com/articles/10-20/v2">Source</a>. The
question is: what are the academic publishers spending this revenue
on?</figcaption>
</figure>
:::

Even before Franz Inglefinger coined his [eponymous
rule](https://en.wikipedia.org/wiki/Ingelfinger_rule) that every
scholarly article must only be published in a single journal, have
scholarly journals been a collection of monopolies. Every article is
only available at a single source and so there is no market and no
competition. This lack of substitutability has not only been the main
reason for exempting subscriptions of scholarly journals from
procurement rules ("single/sole source exemption"), but of course also
behind the supra-inflationary price rises to the detriment of the tax
payer funding public research and teaching institutions (Fig. 2).

::: {.wp-block-image}
<figure class="aligncenter size-full">
<a
href="https://bjoern.brembs.net/wp/wp-content/uploads/2017/10/arl_prices21.png"><img
src="https://bjoern.brembs.net/wp/wp-content/uploads/2017/10/arl_prices21.png"
class="wp-image-1616" data-fetchpriority="high" decoding="async"
srcset="https://bjoern.brembs.net/wp/wp-content/uploads/2017/10/arl_prices21.png 600w, https://bjoern.brembs.net/wp/wp-content/uploads/2017/10/arl_prices21-300x229.png 300w, https://bjoern.brembs.net/wp/wp-content/uploads/2017/10/arl_prices21-50x38.png 50w"
sizes="(max-width: 600px) 100vw, 600px" width="600" height="457"
alt="serials crisis" /></a>
<figcaption><strong>Fig. 2</strong>. Supra-inflationary price increases
for academic journal subscriptions</figcaption>
</figure>
:::

When the late Jon Tennant and I filed our [formal complaint to the
European Commission](https://doi.org/10.5281/zenodo.1472044) in 2018, in
which we detailed how scholarly journal publishing was not a market but
a collection of small monopolies, we had no idea that the EC was already
well aware of that fact and saw nothing wrong with it. In fact, their
reply at the time surprised us, when it indicated that the EC concurred
with our description of scholarly journals being collections of
monopolies, but saw levers for regulation/mitigation elsewhere.

Today, I have been privy to the informal brief written by a legal expert
of the GFF mentioned above. It cites two prior EC instances from
[2003](https://ec.europa.eu/competition/mergers/cases/decisions/m3197_en.pdf)
and
[2015](https://ec.europa.eu/competition/mergers/cases/decisions/m7476_20150331_20310_4221794_EN.pdf)
where the EC had already acknowledged the lack of a genuine market due
to the lack of substitutability (the reply to our complaint is thus just
one in a long list of such documents acknowledging the lack of
competition in scholarly publishing). In these documents, the EC writes,
for instance:

> In particular, from a demand-side point of view, it is rare that two
> different publications can be viewed as perfect substitutes, as there
> are differences in the coverage, comprehensiveness and content
> provided. Therefore, in terms of functional interchangeability, two
> different publications could hardly be regarded as substitutable by
> the end-users, the readers. On that basis, the Commission found that
> consumers will rarely substitute one publication for another following
> a change in their relative prices

and

> Publications for different academic subjects are clearly not
> substitutable from the reader's point of view. Even within a given
> discipline, there may be little demand side substitution from the
> point of view of the individual academic between different
> publications.

and

> In this case, a strict demand approach would lead to the definition of
> a multitude of relevant markets of imprecise boundaries and small
> dimensions.

"Small dimension" of course meaning that every article would constitute
its own market. The term "demand-side" here is defined as both readers,
i.e., academics as well as the institutions paying for the journals,
i.e., libraries, while "supply-side" refers to the publishers:

> The results of the market investigation in the present case confirmed
> the relevance of supply-side considerations for the definition of the
> relevant product market in the academic publishing sector.
> Publications in different academic subjects are indeed not
> substitutable from the readers' perspective. However, many academic
> publishers appear to be active across most of the possible
> segmentations of the market, and offer publications covering several
> disciplines

The quote here is an example of how the EC is well aware of the
conflicting interests between readers and libraries on the one hand
(demand-side) and publishers (supply-side) on the other, while at the
same time expressing a clear prioritization ("confirmed the relevance")
of the interests of the supply-side over the interests of the
demand-side. The dysfunctionality of the current situation for readers
and libraries is understood, acknowledged and dismissed by the EC as
"not relevant" -- very similar to the reply we received for our formal
complaint. In this particular quote, a fig-leaf is offered by stating
that the big publishers cover many scholarly fields, leading to each
library having contracts with several publishers, giving the superficial
impression that there would be several suppliers in a "supply-side"
market. The sentence just prior, however, makes it clear that this is,
in fact, not really a genuine market, but one that exists only on paper,
solely for regulatory purposes.

The GFF legal expert expressed his assessment that courts would be
unlikely to challenge these EC market definitions as the definitions are
seen as the lesser of two evils: explicit confirmation of the publisher
monopolies would entail the loss of the market and with it loss of
regulatory power. In other words, if the publishers were not operating
within a market, they would also not be subject to regulatory market
oversight. The consequence would be completely unregulated mergers
between the most dominant players, which is seen as worse than the
status quo.

His assessment is not changed by the "single source exemption" from
procurement rules: as these rules and anti-trust regulations are
separate jurisdictions, the fact that spending rules define academic
publishers as monopolists while according to anti-trust regulators they
are not, may be a logical contradiction, but not a legal one.

Thus, there are multiple reasons why the EC chose to merely acknowledge
the interests of the scholarly community and instead define markets from
the perspective of publishers. At this point, it is impossible to tell
how much each reason has influenced the authors of these documents. It
may not even be all that important to find this out in order to inform
the scholarly community on the implications from this legal assessment.
As I see it, there are two main lessons to be drawn from this legal
analysis:

1.  If the scholarly community strives to achieve a genuine publishing
    market with competition, we have to design it ourselves. Politicians
    or other decision-makers outside of scholarship will not perform
    this task for us. There is not going to be any help from outside. In
    the lack of a clear market alternative, regulators prefer a group of
    relatively small monopolists over few large or even a single
    monopolist. The scholarly community is the only actor who can
    provide this missing alternative.
2.  Among the "non-publication costs" is a sizeable chunk of money that
    is being used in various legislatives around this globe to convince
    legislators and regulatory bodies that the interests of the academic
    publishing corporations outweigh the interests of the tax payer.
    This constitutes yet another example of how the scholarly community
    provides funds to publishers which then get used against the
    interests of the scholarly community.

From these lessons follows a clear strategic way forward: if the
scholarly community wants to escape from the parasitic relationship with
these corporations, it needs to create a genuine market alternative such
that regulators need not fear the complete loss of market regulations.
Luckily, there [now are ways to create such a
market](https://doi.org/10.5281/zenodo.5526634) and it is fully within
the powers of the scholarly community to create it on its own. For this
market to become a market of service providers, the scholarly content
needs to come back under the control of the scholarly community. Once
this market exists, the scholarly community must lobby at the relevant
bodies to ensure both that "demand-side" interests receive at least the
same "relevance" as "supply side" interests and that the "single source
exemption" from procurement rules is annulled for scholarly publishers.


The debate over how publishers use the large “non-publication costs” (Fig. 1) that they incur and academic libraries, mainly, are funding has been going on for some time now. Above and beyond the cost items we discuss in our paper on publication costs, it has been established that investments in surveillance technology are also part of the publisher spending academic libraries are financing.

Publicaciones de Rogue Scholar

Prioritizing academic publishers