Recently a professor from the University of California, Los Angeles filed an antitrust complaint against six academic publishers before the US District Court for the Eastern District of New York. SpicyIP intern Samridhi Chugh writes on this development, discussing the problems for open access posed by the business of academic publishing. Samridhi is a final-year student at the Campus Law Centre, Faculty of Law, University of Delhi, and a graduate in Journalism from Lady Shri Ram College for Women. With a passion for the dynamic intersection of law, media and technology, she is particularly interested in exploring intellectual property and tech policy. Her previous posts can be accessed here.
UCLA Professor Takes on Academic Publishing Giants in Groundbreaking Antitrust Lawsuit
By Samridhi Chugh
A recent development from legal frontiers in the USA has introduced a marked departure from the usual trend of lawsuits filed by big academic publishers against alleged copyright infringers the world over. UCLA professor Lucina Uddin, on September 12, filed an antitrust lawsuit against six largest academic publishers—Elsevier, John Wiley & Sons, Sage Publications, Springer Nature, Taylor & Francis and Wolters Kluwer, along with the International Association of Scientific, Technical, and Medical Publishers (STM). Filed in the federal district court in New York, the suit claims that these publishers have entered into unlawful agreements in restraint of trade and commerce, contravening Section 1 of the Sherman Antitrust Act.
Uddin’s suit, with the potential to set a decisive precedent against the predictable wave of incursions by academic publishers, fervently challenges many prevalent practices widely seen as problematic in the academic publishing industry. Till now, the somewhat limited response to such practices has been more in the form of the open-access movement, globally and in India (though these, too, are not without their own problems). This suit may perhaps also open the doors for future scrutiny of potentially collusive and monopolising practices and carry broader implications for (big?) academia.
A Flurry of Allegations
Uddin has sought for ‘class-action’ status for her suit on behalf of all US scholars who have submitted manuscripts or provided peer review services for these publishers since September 2020, arguing that they were all affected by the same illegal practices (paras 106-110). In her pivotal charges, Uddin has accused the aforesaid publishers of illegally agreeing to adhere to what is known as the “Single Submission Rule” restricting researchers to submitting a manuscript to only one journal unless rejected, an “Unpaid Peer Review Rule” mandating uncompensated peer review labour, and a “Gag Rule” preventing researchers from sharing or discussing their manuscripts after submission until they are published (paras 2-4).
Uddin submits that the alleged collusive mandates imposed by the publisher-defendants are ‘per se’ unlawful, or at least warrant a ‘quick-look’ form analysis, according to which the burden shifts on them to disprove her allegations (paras 5, 125, 126). Furthermore, Uddin’s suit also holds the acts of publishers culpable of detrimentally impacting the overall scientific innovation ecosystem, especially given the impact of the delays caused by the embargoes directly or indirectly emerging from the publishers’ adherence to the aforementioned rules which are said to significantly stymie knowledge sharing and discovery (paras 10, 87, 88).
The suit, imperatively, lays focus on the claim that publishers have misappropriated publicly funded academic research without dispensing fair compensation to researchers and scholars (paras 10, 34). Emphasising the dominant position occupied by the publisher-defendants, that cumulatively comprise nearly 53% of the global academic journal market (paras 33, 96), the suit alleges that they have cartelised and leveraged their market position to charge excessive fees while avoiding to pay for ‘voluntary’ services like peer review (paras 2, 34, 37, 39, 40, 42, 46, 76). In fact, the lawsuit cites publishers’ own policy statements to support Uddin’s claim that they not only refrain from paying reviewers for their time, but also patronisingly expect them to be grateful to be chosen for the opportunity to render their services from among the wide academic fold (para 43).
The publisher-defendants have been further accused of exploiting the academic community by imposing steep Article Processing Charges (APCs) on scholars for open-access publishing which can amount to thousands of dollars. The suit claims that despite providing minimal value beyond content distribution, the defendants enjoy substantial profit margins, exceeding even big tech companies like Apple (30%) and Google (25% ) (para 7, wherein it is stated that in 2023, Elsevier’s profit margins were more than 38% and Taylor & Francis’ more than 35%). In light of these grave allegations, Uddin’s suit prays for monetary damages for the scholars as well as injunctive relief against the publishers with the hope of restoring a modicum of fairness to the academic publishing industry.
The Possible Domino Effects
If anything, regardless of their legal outcomes, the nature of allegations levelled in the Uddin suit reveals a complex set of circumstances governing the ‘business of academic publishing’ – an assortment of words which together form a rather oxymoronic arrangement. Many have argued over the years that the collective monopoly of a handful of publishers over academic research, which is considered a vital public good, fetters both scientific development and public access to education.
While the follow-up to the antitrust suit as well as its future legal standing cannot be predicted at such an incipient stage, it is evident that its outcome can set the tone for the future of academic publishing. It is not unknown that publishing giants come with a documented history of being excessively aggressive in pursuing restrictions on the free distribution and accessibility of educational resources. In the recent years, big publishers and digital journals, including Elsevier, American Chemical Society (ACS), Wiley, Taylor and Francis, etc., have pressed numerous restraining suits against multiple ‘rogue’ digital players who they deem as “infringers” of the academic content they claim exclusive IP control over. Shadow libraries like SciHub and Libgen have been especially privy to Elsevier’s legal blitz since 2015, wherein they were defeated in the biggest copyright infringement suit of the time, with the publisher winning USD 15 million in damages.
Last month, the Internet Archive lost a copyright lawsuit against major publishers, resulting in the removal of over 500,000 books from its digital lending services. The US Court of Appeals ruled that its digitisation and lending practices violated the copyright of multiple publishing houses, despite being a nonprofit. This decision completely disregards the first sale doctrine, as emphasised by Tanishka Goswami in her recent post, akin to the outcome in the much-controversial judgments by the Delhi High Court (DHC) in 2010 in the two suits filed by John Wiley & Sons, which allowed publishers to control post-sale exports. She also flagged how Indian digital libraries, including the National Digital Library of India and eGyanKosh, may also face similar legal challenges if their digitisation and lending practices are deemed to be contravening the limited interpretations of the fair dealing provisions under Section 52(1) of the Copyright Act, 1957, in the aftermath of the landmark verdict in the 2016 DU Photocopy case.
In the infringement suit filed by Elsevier against SciHub and Libgen at the DHC, a significant aspect of the defence argument revolves around the alleged lack of monetary considerations or compensations outlined in assignment agreements for authors, as earlier highlighted by Tanvi Agarwal in her analysis. While the Court did not entertain the averment therein and kept it open for further inquiry, a judicial vindication of Uddin’s accusations around the publishers’ anti-competitive practices against authors and researchers can hold significant persuasive value for similar suits across the globe.
India and the Unrealised Promise of Open Access
The above developments come with the ultimate bottomline for scholars and the reading masses. Today, big digital publishers, journals and platforms thrive in their ambitions to bank on the public stakes in research, and have barricaded much of the relevant academic content behind tall paywalls with exorbitant subscription charges. The ultimate locking in of licensing deals by publishers like Oxford University Press and Taylor & Francis with the government entity E-ShodhSindhu at the annual fees of INR 8.75 crore and 10.71 crore respectively, a decade after the DU Photocopy case, also exemplifies their keen business sense. Meanwhile, researchers are required to pay excessive APCs to ensure open public access to their work. Indian researchers alone spent nearly USD 17 million in APCs, in the year 2020, more than half of the cumulative global spending that year, as per a paper published in 2023 by Raj Kishor Kampa, Manoj Kumar Sa and Mallikarjun Dora.
The increasingly vexing nature of these issues became much evident during the Covid-19 pandemic when academia became more digitally reliant and publishing giants became the sole repositories of relevant scholarly information. The pandemic certainly provided a limited impetus to the support for the open-access movement. However, the unending line-up of globally-spread copyright lawsuits continues to affirm the stronghold of corporate giants on access to knowledge notwithstanding that the copyrighted material has been used for non-profit and educational purposes.
In the year 2020, the Government of India proposed the pioneering ‘One Nation, One Subscription’ (ONOS) idea as a part of the draft National Science, Technology and Innovation Policy (STIP). ONOS was geared towards providing the much needed stimulus to the open-access movement in India with the government vying to establish a centrally-negotiated payment mechanism replacing individual institutional journal subscriptions. Even though the policy had many sceptics, it promised to ensure free access to journals for all citizens, open new R&D avenues and minimise some of the key financial issues faced by academic institutions, research scholars and students alike.
Proclaimed with much jubilation, the current status of the ONOS remains uncertain, with the looming possibility that its implementation may have been indefinitely shelved. Initiated without a crystalised deadline, the government in 2022 assured that the policy would be implemented by April 2023, giving access to around 70 journals, and insisted that institutions put their renewals on hold until the negotiations were complete.
However, despite the formation of multiple committees to oversee the process, including a core group and a cost negotiation committee, talks with publishers appear to have remained incomplete. As a result, while there are sporadic instances of micro-successes, such as the Department of Atomic Energy implementing the concept internally, nationwide institutions have been forced to renew their individual subscriptions for the year 2024 as well. Could there have been developments that went unnoticed or is the initiative truly facing indefinite delays, as recent reports indicate? Any insights or updates from readers would be greatly appreciated.
The above despairing sequence of events not only brings to light the persistent inertia impeding the onset of reforms in the current academic structures, but also stands as a glaring symbol of the huge bargaining power usurped by publishing giants, especially in the Global South. The need of the hour is to prevent these monopolies from coming in the way of India’s progress in innovation and education, and to ensure accessibility for all. Additionally, beyond allegations of monopolisation, even the quality and integrity of work published by these major publishers has been under scanner. For instance, as per a recent report by the Retraction Watch, a Springer Nature journal has taken down over 200 papers since September 1, owing to concerns about compromised peer review and the undisclosed use of AI. Such instances reveal deeper problems in the publishing world that warrant a separate discussion. For now, it is for time to tell what holds for the future of a freer research ecosystem.