Where Open Access Has Failed To Reform Academic Publishing, Perhaps Antitrust Law Will Succeed

The open access movement has been trying for over 20 years to promote the widest access to knowledge. Sadly, as numerous Walled Culture posts have chronicled, what should be a matter of social justice has been subverted by clever and cynical moves from the academic publishing industry in order to retain their fabulous profit margins. As a result, the open access movement has failed to deliver cost-free access to academic papers, or to ease the process of sharing knowledge, at least on the scale that it initially aimed for. That makes a completely different approach to tackling the problems of academic publishing, using US antitrust laws, extremely interesting.

The press release from the law firm that filed the lawsuit, Lieff Cabraser Heimann & Bernstein, claims that “publishers conspired to unlawfully appropriate billions of dollars that would otherwise have funded scientific research.” There are three main components to the alleged antitrust activities of the six academic publishers named – Elsevier, Springer Nature, Taylor and Francis, Sage, Wiley, and Wolters Kluwer.

First, the fact that peer review, whereby other academics review their colleagues’ submitted papers, is unpaid work. The lawsuit claims that the six named publishers “coerce scholars into providing their labor for nothing by expressly linking their unpaid labor with their ability to get their manuscripts published in the defendants’ preeminent journals.”

Secondly, the antitrust complaint points out that publishers “agreed not to compete with each other for manuscripts by requiring scholars to submit their manuscripts to only one journal at a time, which substantially reduces competition by removing incentives to review manuscripts promptly and publish meritorious research quickly.” This is known as the Ingelfinger rule. The third component of the complaint, perhaps the most interesting for readers of this blog, is that academic publishers prohibit scholars from freely sharing the scientific advancements described in submitted manuscripts while those manuscripts are under peer review, something that often takes over a year. As the antitrust complaint puts it:

From the moment scholars submit manuscripts for publication, the Publisher Defendants behave as though the scientific advancements set forth in the manuscripts are their property, to be shared only if the Publisher Defendant grants permission. Moreover, when the Publisher Defendants select manuscripts for publication, the Publisher Defendants will often require scholars to sign away all intellectual property rights, in exchange for nothing. The manuscripts then become the actual property of the Publisher Defendants, and the Publisher Defendants charge the maximum the market will bear for access to that scientific knowledge

The lawsuit claims that the actions of the academic publishers are not only illegal under the US Sherman Antitrust Act, but that they have resulted in “perverse market failures that impair the ability of scientists to do their jobs and slow dramatically the pace of scientific progress.” According to the complaint, this has led to a worsening of the peer review crisis, which has seen fewer scholars willing to provide their work for free. More generally, it has “held back science, delaying advances across all fields of research.”

The lawsuit seeks treble damages, together with injunctive and other relief, “including an order to enjoin the defendants from continuing to violate the law by requiring them to dissolve the challenged unlawful agreements.” All-in-all, it’s a clever way of trying to tackle the key problems of academic publishing. Whether it will go anywhere remains to be seen, but it’s good that someone is at least trying something new.

Follow me @glynmoody on Mastodon and on Bluesky. Originally published to Walled Culture.