Should public institutions not be choosing the lowest responsible bidder?
In: science politicsPublic institutions the world over are required to spend their funds responsibly. Commonly, this is done by requiring them to host bids for purchases or services above a certain threshold. If you work at a public institution and have wondered, e.g., why you are only allowed to buy a computer from your computing facility which only sells one particular brand, then the answer likely is that this brand won the bidding contest.
The idea here is, to quote from an old (1942) document from the US:
The awarding of contracts by municipal and other public corporations is of vital importance to all of us, as citizens and taxpayers. Careless and inefficient standards and procedures for awarding these important community commitments have increased unnecessarily the tax burdens of the public. To secure a standard by which the awarding of public contracts can be made efficiently and economically, and with fairness to both the community and the bidders, the constitutions of some states, and the statutes regulating municipal and public corporations provide for the award of public contracts to the lowest responsible bidder.
As far as I know, most countries have such purchasing rules in place for essentially every service or purchase. However, it seems one area of services is exempt from this rule: scholarly publishing services, in particular journal article publishing (not sure about books). While every major plumbing operation, every ventilation improvement and every cleaning contract needs to be signed after a competitive bidding procedure, we negotiate subscription deals behind closed doors and the signed contracts are often hidden behind non-disclosure agreements. It seems to me that the second sentence in the quote above describes the consequences of these back-room dealings quite accurately. What evidence is there to support this view?
If one looks at the costs of these subscription deals, one finds that they amount to about US$5,000 per published subscription article. However, open access publishing costs (not article processing charges, APCs!) range from below US$100 to around US$500, depending on a variety of factors. Hence, publishing services which let everybody access our literature would blow out any subscription publisher if a competitive bidding process would take place! (Note that some publishers charge their customers much more than their bare-bones publishing costs for a variety of reasons)
As everyone knows, the justification for subscriptions purchases is that the subscribed content can only be obtained at this one publisher, so there cannot be any bidding. The subscription business is essentially one of monopolies, obviously. This argument is about as superficial as it is vacuous. Institutions currently spend huge sums acquiring large collections of journals only few of which are heavily used. From a single article perspective, these collections provide a massive oversupply: institutions pay for access to many more articles than their faculty actually read. If our institutions were instead to focus on serving their faculty’s publishing rather than reading needs, the money would arguably be spent much more effectively.
For quite some time now, we have observed the development new business models such as those of Ubiquity or Scholastica. These service providers allow their clients to switch services if they are not satisfied. Let’s say we, University of XYZ, find Scholastica’s US$100/article service is the lowest responsible bidder. After a year or two we get so many complaints from our faculty about what a horrible service this is, that we decide to have another round of bidding, where we include a more extended range of services. Let’s say the US$500 per article service of Ubiquity wins the bidding this time. University of XYZ can easily switch, without losing access to any of the published articles, simply because the articles remain under the control of University of XYZ. From one year to the next, the service provider switches and our faculty are much happier than before. University of XYZ can make a good case that it is getting a better value for money now than it did with the nominally cheaper option, because it still went with the lowest responsible bidder. Such a situation would create a truly competitive service market (as long as anti-trust regulations remained in effect).
Conversely, does this technical possibility mean that public institutions who are still negotiating with individual subscription publishers without a competitive bidding process could now be sued ?
Phrased differently, now that we no longer have to hand over our manuscripts to publishers for them to create a monopoly with our work, aren’t we legally required to make sure there can be a competition?
Phrased yet differently: Every single subscription to scholarly journals can be seen as an anti-competitive act that keeps a new business model that allows for competitive bidding from emerging. Shouldn’t there be some legal pushback against this perpetuation of tax-waste?
UPDATE – an analogy due to online questions:
Suppose University of XYZ needed all their windows cleaned. For some historical reason, faculty decided to all sign over their rights to access their windows to any company of their choosing, such that no other company could come and clean them. Afterwards, the university had to pay outrageous fees for the various cleaners chosen by faculty, because only they had the rights to clean the particular windows the faculty had given to them. You could only get Window X cleaned by Cleaner Y. This is analogous to how we currently publish scholarly works. Shouldn’t we instead keep the rights to our works and have ‘publishers’ compete for our business?
Good points. Here’s a little article I wrote some years ago, on an idea of tendering OA publishing: https://hdl.handle.net/10037/5067
Thanks! This was indeed very much along the lines I was thinking. Some small differences, but they go to show that one can come up with many different ways of doing this, such that one can tweak the process if some details don’t work as intended. Cool!
Very interesting piece! The problem, as you correctly identify, is that particular publishers have a monopoly on articles due to researchers foolishly assigning copyright to that publisher. So the fact that a University is paying huge sums for entitlement to access large numbers of articles, but only relatively few are of interest to faculty in that University is a logical consequence of those foolish actions by researchers all over the world. I don’t think you can blame the Universities for negotiating deals with publishers in such a monopoly situation, and so am doubtful they have any legal case to answer on their current approach. What needs to be done – and this will only work in the medium term, not immediately – is for Universities to make it a condition of employment (or continued employment) of researchers that their employees do not assign copyright in journal articles to publishers, but rather give the publisher a licence to reproduce, whilst retaining copyright for themselves. This is a policy I have adopted with publishers for many years, and they (and this includes the biggest boys) always give way eventually. But it takes time and persistence for me (I like to think a well-established researcher), and many would give up on the idea of the individual trying to beat down a large publisher on this issue. It would be much easier if researchers were able to say “I’m really sorry, but my terms of employment PREVENT me from assigning copyright to you”.
So can Universities be in legal trouble for negotiating directly with publishers? No, as I don’t think they have a choice in the current situation. But I would argue they should take over the handling of copyright issues as it is plain that researchers are incapable of doing so in a sensible fashion (and I include myself in this – for many years I thoughtlessly assigned my copyright to publishers, and only stopped doing so about ten years ago). So, I would argue that there is indeed a legal case for requiring Universities to impose employment terms on their staff requiring those staff not to assign copyright in journal articles to publishers, and if Universities fail to impose such employment contracts, then they could be sued as suggested in the original posting.
Two further thoughts: as public institutions, Universities should be obliged to reveal the commercial terms they sign up to with these monopolies, and should refuse to sign any confidentiality clauses preventing them from doing so. And on book deals, Universities can and do negotiate with different book supply companies and choose the best value for money deals – they rarely deal with the publishers directly.
Dear Charles, thank you very much for your valuable insight!
You wrote: “So can Universities be in legal trouble for negotiating directly with publishers? No, as I don’t think they have a choice in the current situation.” Can one really make this claim in today’s day and age? There are alternatives to the publishers in terms of publishing (mentioned in the post) and with single article purchase, archival rights in subscription contracts, LOCKSS, DOAI, #icanhazpdf, Sci-Hub etc.there are plenty of (mostly) legal alternatives to reading as well. How would the defense argue that there is no choice if so many articles in subscriptions go unread?
Bjorn, I take your point, but none of the legal alternatives cover ALL the articles that are of use to staff at a given University. As an analogy to the current problematic situation, consider an annual season ticket for a rail journey to work. You don’t ride on EVERY train available, you ride on a small % of them – but your season ticket gives you the right to travel on any that you choose. In the same way, a University takes out a season ticket to a publisher, even though it will never make use of all that is on offer and yes, some of what is on offer is indeed available elsewhere for lower cost (for example with my analogy, you could take a bus, or taxi, and indeed many people do if they don’t travel often enough to justify a season ticket purchase). The University has to make a judgement as to what is the most cost effective way to get the most articles to the most users – and sometimes it will be by means of individual purchases the way you say, though each individual purchase involves time and effort. As someone who pontificates about copyright law a lot, I cannot recommend Sci-Hub, and any University that made use of Sci-Hub (or allowed/turned a blind eye to its staff to do so) is running a real risk of being sued.
As the choices for legal purchases improve, the need for publisher subscriptions declines, but my argument is that to give this trend the impetus it needs, Universities should start requiring their staff not to assign © to publishers. That is the key, and all else follows.
Charles
Point taken, many thanks! In the hypothetical case that someone were to sue a university for making this judgment in the wrong direction, i.e., this person would argue that individual article purchase in combination with the myriad of other options would have been cheaper, would the burden of proof be on the plaintiff (difficult, how should they get that data) or the defendant?
(Just as an aside WRT Sci-Hub: in Germany I’m told the download would likely be risk free, while advertising the site or hosting it might well be considered illegal, if tested in court. Would the UK consider already individual usage of Sci-Hub illegal? Or is there an overriding EU rule that clarifies this? You seem to hint that universities may have an obligation to track sci-hub usage by their faculty (“turn a blind eye”)? That I would find quite outrageous, tbh.)
If there was a complaint, the burden of proof would be on the complainant that a better deal could have been obtained in a different way, but I suspect they could force the University to reveal its figures at a preliminary hearing.
In the UK, and the EU, any individual downloading from Sci-Hub would be considered infringement, but I doubt a publisher would sue if it was one person downloading one item – it would not be worth the effort, or the resulting bad publicity. So I would agree that it would be virtually risk-free. But if someone was repeatedly downloading, it is no longer risk-free and then it would be worth their while to sue, as the publisher can argue it is damaging their legitimate commercial interests (see next paragraph). Without doubt advertising, promoting or hosting Sci-Hub or something analogous is high risk throughout the EU.
A key point about exceptions to copyright. Yes, one can make a copy of something for the purposes of non-commercial research or private study without a problem, but only as long as it does not significantly damage the legitimate commercial interests of the rights holder.
On University responsibility, I worded it badly. What I meant was that if a University became aware (say someone complained to them) that one of its staff was downloading from Sci-Hub, and chose not to do anything about that complaint, then it would rightly be in potential trouble. I am NOT suggesting Universities should pro-actively track what staff and students get up to, and I don’t see any legal difficulties about, in the absence of a formal complaint or notification, adopting such a policy.
Thank you so much for answering all my questions. That was extremely helpful, as was your clarification WRT a university’s obligations about sci-hub downloads.