Leading Open Access Supporters Ask EU To Investigate Elsevier's Alleged 'Anti-Competitive Practices'

Back in the summer, we wrote about the paleontologist Jon Tennant, who had submitted a formal complaint to the European Commission regarding the relationship between the publishing giant Elsevier and the EU’s Open Science Monitor. Now Tennant has joined with another leading supporter of open access, Björn Brembs, in an even more direct attack on the company and its practices, reported here by the site Research Europe:

Two academics have demanded the European Commission investigate the academic publisher Elsevier for what they say is a breach of EU competition rules that is harming research.

Palaeontologist Jon Tennant and neuroscientist Björn Brembs, who are both advocates for making research results openly available, say the academic publishing market “is clearly not functioning well” in an official complaint about Elsevier’s parent company RELX Group.

The pair claim RELX and Elsevier are in breach of EU rules both due to general problems with the academic publishing market and “abuse of a dominant position within this market”.

The 22-page complaint spells out what the problem is. It makes the following important point about the unusual economics of the academic publishing market:

For research to progress, access to all available relevant sources is required, which means that there is no ability to transfer or substitute products, and there is little to no inter-brand competition from the viewpoint of consumers. If a research team requires access to knowledge contained within a journal, they must have access to that specific journal, and cannot substitute it for a similar one published by a competitor. Indeed, the entire corpus of research knowledge is built on this vital and fundamental process of building on previously published works, which drives up demand for all relevant published content. As such, publishers do not realistically compete with each other, as all their products are fundamentally unique (i.e., each publisher has a 100% market share for each journal or article), and unequivocally in high demand due to the way scholarly research works. The result of this is that consumers (i.e., research institutions and libraries) have little power to make cost-benefit evaluations to decide whether or not to purchase, and have no choice but to pay whatever price the publishers asks with little transparency over costs, which we believe is a primary factor that has contributed to more than a 300% rise in journal prices above inflation since 1986. Thus, we believe that a functional and competitive market is not currently able to form due to the practices of dominant players, like Elsevier, in this sector.

Most of the complaint is a detailed analysis of why academic publishing has become so dysfunctional, and is well-worth reading by anyone interested in understanding the background to open access and its struggles.

As to what the complaint might realistically achieve, Tennant told Techdirt that there are three main possibilities. The European Commission can simply ignore it. It can respond and say that it doesn’t think there is a case to answer, in which case Tennant says he will push the Commission to explain why. Finally, in the most optimistic outcome, the EU could initiate a formal investigation of Elsevier and the wider academic publishing market. Although that might seem too much to hope for, it’s worth noting that the EU Competition Authority is ultimately under the Competition Commissioner, Margrethe Vestager. She has been very energetic in her pursuit of Internet giants like Google. It could certainly be a hugely significant moment for open access if she started to take an interest in Elsevier in the same way.

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