Germany vs Elsevier, and the race for legal open access

The debate about green versus gold open access leaves aside a more fundamental difference: that between legal open access and pirate open access. This difference is essential because, as Bjorn Brembs put it,

In terms of making the knowledge of the world available to the people who are the rightful owners, [pirate] Alexandra Elbakyan has single-handedly been more successful than all [legal] open access advocates and activists over the last 20 years combined.

With Sci-Hub, pirate open access is so successful that one might wonder whether legal open access is still needed. The obvious argument that pirate open access is parasitic and therefore unsustainable, because someone has to pay for scientific journals, is easily disposed of: with up-to-date tools, journals could cost orders of magnitude less than they currently do, and be financed by modest institutional subsidies. A better reason why pirate open access is not enough is that it is subject to technical and legal challenges. This makes it potentially precarious, and unsuited to uses such as content mining.


Universal open access would in principle lead to the elimination of subscriptions to journals, and the progress of open access could therefore be measured in terms of reductions in subscription costs. From this angle, open access has made little or no progress so far. However, pirate open access may make a crucial contribution to achieving legal open access, by making subscriptions to journals less vital to academics. Subscription costs could then decrease, and journals could find fewer subscribers, possibly to the point where the subscription model becomes untenable to publishers.

This assumes that academic institutions take advantage of the existence of Sci-Hub in their negotiations with publishers. But academic institutions are used to accepting endless price increases, rather than risking losing access to journals. They did not all realize that their negotiating position is now much stronger: for example, the British consortium JISC recently reached a calamitous deal with Elsevier.

The German consortium DEAL, however, did adopt a firm negotiating stance, and let subscriptions run out at the end of 2016, rather than accepting an unsatisfactory proposal by Elsevier. And DEAL’s Ralf Schimmer is not afraid to publicly mention Sci-Hub, and to advocate the collapse of the subscriptions system. As a result, many German researchers are now unable to legally access Elsevier journals, except through slow, unsystematic and/or inconvenient procedures. Academics who write in Elsevier journals should know that their German colleagues may find it difficult to read their work: this is one more reason not to write in Elsevier journals.

With a Finnish and a Taiwanese consortium in comparable situations, DEAL is not alone, but it is the largest and probably the boldest consortium to take on Elsevier. We may soon learn how long academics can survive without the subscriptions to which they are accustomed, and whether important concessions can now be extracted from publishers. DEAL has a sound strategy (including begin prepared for not reaching an agreement) and favourable environment (easy access to Sci-Hub): if it fails, nobody else is likely to succeed. If DEAL succeeds, it will find imitators, and the end of the subscriptions system could come as soon as the current subscription contracts expire. (These contracts are typically for five years.)

Threatened with the demise of subscriptions, the publishing industry has two options:

1. performing a revenue-neutral switch from subscriptions to gold open access,
2. trying to block access to Sci-Hub.

Option #1 is not popular with big publishers, who have rather been trying to earn money from gold open access on top of subscriptions. After all, from their point of view, they should earn more for giving access to everyone, than for giving access to subscribers only. Hints that option #1 is still not pursued seriously include the rejection by Elsevier of DEAL’s demand that articles with German authors be made open access, and the recent launch by Springer Nature of five new subscription journals. So publishers are most likely pursuing option #2. Their efforts can hardly be limited to the rather ineffective lawsuit of Elsevier against Sci-Hub, and there may soon be further attempts to make Sci-Hub less accessible in countries where subscriptions matter, including especially Germany.

The future of open access may be determined by whether publishers manage to have Sci-Hub effectively blocked, before subscriptions irreversibly collapse. At the moment, publishers seem to think that they can win this slow-moving race. But at least, thanks to the DEAL consortium, the race has begun.