As a chronicler of transformative agreements, I keep a close watch on not only the expanding number of libraries seeking and signing such contracts but also the ways that publishers and libraries are using them as a basis to experiment with different strategies for sustainability and open access publishing. I’ve written about their impact on reading access to subscription content and library consortium cohesion and offered reflections on what the path forward requires. I’ve also detailed their variations, from some of the largest of these agreements, such as Wiley/Projekt DEAL and Elsevier/University of California, to innovations such as the SAGE/University of North Carolina-Chapel Hill rebate model.
It will come as no surprise, then, to readers of The Scholarly Kitchen, that my interest was piqued by the announcement of an agreement between NERL and Elsevier that “pilots retroactive open access (OA) for participating institutions’ authors” and that “the retroactive OA pilot program is the first of its kind.” I am grateful to Lindsay Cronk, Assistant Dean, Scholarly Resources and Curation, University of Rochester, and Jessica Morales, Program Director, Collection Strategy and Acquisitions, University of Notre Dame, co-chairs of the NERL Negotiating Team, and Andrew Davis, Vice President, Global Communications, Elsevier for their assistance in unpacking the details of this agreement.
NERL is a library consortium consisting of a core group of 30 research intensive institutions in North America as well as more than 110 affiliate member institutions. This new agreement with Elsevier was negotiated as an amendment to the already existing Elsevier/NERL master agreement and then executed with individual NERL member libraries. 13 institutions are participating in this Elsevier agreement: Boston University, Columbia University, Cornell University, Dartmouth, Georgetown University, Johns Hopkins University, New York University, Syracuse University, University of Miami, University of Notre Dame, University of Pennsylvania, University of Rochester, and Yale University.
The core of the agreement is a renewal of subscription access to ScienceDirect, which is Elsevier’s discovery and delivery platform for Elsevier journals and books, as well as some content syndicated from other publishers. The subscription to this content access is paired with a retroactive open access program. In each year of the three-year agreement, five years of content authored by researchers based at NERL institutions is converted from subscription-only access to open access.
The libraries are receiving greater value for lower spend. The value of the agreement is increased over the past agreement through the addition of the retrospective open access pilot, particularly for those libraries at institutions with higher publishing volume. In addition, the first-year price is discounted and coupled with decreased inflationary adjustments over time.
It is worth noting that the agreement does not include any mechanism for prospective open access publishing, which is the typical approach to provisioning open access articles in a transformative agreement, usually through discounted or bulk APC payments. Transformative agreements that support prospective open access publishing are typically called read-and-publish or publish-and-read, depending on the financial structure of the contract. In this case, there is no separate payment for the retrospective open access; the retrospective over access is bundled into the reading fee, in a kind of “free gift with purchase” deal structure.
Executing the Backflip
In each of the three years of the agreement, five years of content are converted to open access from closed status. The specific dates of the backflip coverage for each year are:
- Contract Year 2022 – Eligible Articles from 1994 to 1998
- Contract Year 2023 – Eligible Articles from 1990 to 1993 and 1999
- Contract Year 2024 – Eligible Articles from 1986 to 1989 and 2000
By the end of the three year contract, approximately 76,000 eligible articles from 1986 through 2000 will be open. All of this content was published before the Budapest Open Access Initiative was signed in 2001 and much of it was published only in print initially and would have been digitized later.
The retrospective conversion to open access is being “implemented via a highly customized and largely manual operational process” according to Davis. Elsevier must identify each article with a corresponding author at a participating institution and then convert it to an “Open Archive Article.” Each article is then licensed CC BY-NC-ND; however, there is no rights reversion. The copyright that was transferred to Elsevier is retained by Elsevier.
My spot-checking found that the CC license information is updated on ScienceDirect and that the open status is also reflected in discovery tools such as Dimensions. However, the PDFs have not been regenerated with the CC license (e.g., compare the ScienceDirect record and the PDF for one such article), which may create confusion for readers as well as downstream complications for Article Sharing Framework implementations until the PDFs are updated.
Developing and Monitoring the Agreement
Elsevier and NERL will be working collaboratively to evaluate the impact of the pilot, reflecting the collaborative approach that they took to creating it.
As Davis explained, “From the beginning, we approached the NERL renewal as a collaborative effort and viewed our conversations as a co-creative process. We undoubtedly achieve the most successful outcomes when there is trust, mutual candor and openness about what is most important or what might be more challenging. NERL has been an incredible partner over the years, and we are thrilled to explore new areas and continue building on that partnership.”
Cronk reflected this commitment in characterizing the relationship as “strong” and stating that NERL “was not entering the negotiations in order to walk away” but rather to “show a way forward” that aligns with NERL’s “Preferred Deal Elements for License Negotiations.” This mutual commitment enabled the agreement to be negotiated in under 9 months, without the kind of relationship deterioration we have seen elsewhere.
Initial plans for assessing the impact of the retroactive open access focus on downloads and citations to the open articles. There are also discussions about how to assess researcher response to the pilot and, in particular, to note any response from authors whose work is retroactively opened.
It is inevitable that some will argue that these articles are not really open access. The particular CC license is more restrictive than what would be allowed, for example, by Plan S funders under their open access mandates and deviates greatly from the CC BY license that the Budapest Open Access Initiative termed the “optimal license.” Also, Elsevier retains the copyrights to the articles, which is counter to the recent emphasis on rights retention by authors. I raised this with the NERL team. Morales engaged this critique, stating that their focus is on “removing barriers where we can” and that, even acknowledging the limits of the agreement, it is valuable for the public access it does achieve. Cronk concurred saying that she is “pleased to have moved the conversation along” and observed that this sets a new foundation for future conversations.
Some may also be frustrated that this agreement means that Elsevier is able to extract even more value from its subscription content by using it to sweeten and close the deal with NERL and see it as more double-dipping. They would point out that these articles were already sold in print and then sold again when digitized, electrically licensed, and included in backfile and post-termination rights arrangements. Given the alternative, however, in which the articles continue to be paywalled and only accessed by those who can afford to subscribe, NERL’s strategy here – to open them via a “free with purchase” component of the agreement – can be seen as reflecting the ethos of subscribe to open, through which actions by individual actors create open benefit for the collective.
NERL is currently in negotiations with other publishers with more coming on the horizon. While Elsevier agreed to the pilot, two others previously refused. Whether additional publishers will be willing to entertain similar terms for retroactive open access pilots or if they will decline is unknown; however, NERL will be asking, per the “Open Access” Category of the Preferred Deal Elements.
Whether other customers will raise this same ask with Elsevier is also unknown. According to Davis, Elsevier is “focused on listening to the unique needs and goals of our customers.” This pilot responds to the objective of “increasing the openness of NERL backfile content, speaking directly to one of NERL’s core values around equity and reflecting Elsevier’s willingness to pilot new ways of supporting openness.”