Evidence to Commonsbusiness, Innovation and Skills

EVIDENCE TO COMMONSBUSINESS, INNOVATION AND SKILLS

SELECT COMMITTEE INQUIRY INTO OPEN ACCESS

Submission on behalf of the Socio-Legal Studies Association

by Professor Rosemary Hunter, University of Kent, Chair of the Association

The Socio-Legal Studies Association (SLSA) is a learned society, the aims of which are to advance education and learning and in particular to advance research, teaching and the dissemination of knowledge in the field of socio-legal studies.

The SLSA does not publish its own journal or journals, but it does receive substantial sponsorship to support its activities and provide benefits to members from commercially-published socio-legal journals, and hence is concerned about the ongoing viability of those journals and their revenues.

This submission addresses in turn each of the topics set out in the Committee’s call for written evidence, and concludes with recommendations for action which we would urge the BIS Committee to make to Government, RCUK and HEFCE.

The Government’s acceptance of the recommendations of the Finch report, including its preference for the ‘gold’ over the ‘green’ open access model

The SLSA fully supports the objective that the results of publicly funded research should be made freely available to potential research users. Indeed, we are very conscious of the fact that current journal subscription costs limit the availability of much research, particularly internationally, and hence inhibit the flow of information, ideas and productive dialogue.

The SLSA does not believe, however, that ‘gold’ OA is the most appropriate or sustainable model of open access for the entire higher education sector. We note that the Finch Committee’s preference for ‘gold’ OA is not argued in their report, but is simply taken to be the norm for open access publishing, apparently based on the fact that this is the model which has been adopted by the big open access publishers in the sciences such as BioMedCentral and PLoS, and by commercial publishers, including in ‘hybrid’ journals funded primarily by subscriptions, but offering authors an open access option on payment of an APC. While the field of open access may be well developed in the science disciplines, however, it cannot be described as mature in the humanities and social science disciplines. Although commercial publishers in these disciplines do offer ‘gold’ open access options in hybrid journals, these options have not been taken up in the absence of strong imperatives to do so, mainly due to the fact that they are prohibitively expensive relative to the kinds of funding humanities and social science researchers generally have available to them.

We would maintain that ‘gold’ OA is a model which has been developed around the interests of a narrow group of market actors and is not generalisable to the entire sector. Indeed, for humanities and social science disciplines it represents the worst of both worlds. Not only are the kinds of APCs being charged by the commercial publishers prohibitively high, but the business model of funding a journal via APCs rather than subscriptions is far less feasible due to the fact that humanities and social science journals publish different kinds of articles from science journals – i.e. much longer articles (20pp. plus), and hence a much lower volume of articles per issue, resulting in much lower APC revenue than a science journal publishing articles of 3-5 pages in length may be able to generate.

At the same time, widespread implementation of the ‘green’ OA model would be equally destructive of journal revenues in the humanities and social sciences. With a short embargo period of only 12 months, as required by the RCUK mandate, it is foreseeable that all but the most prestigious journals would lose UK library subscriptions, resulting in a substantial reduction in publishing venues. In relation to those journals that continued to operate, UK scholars would be placed at a disadvantage relative to scholars in other parts of the world, whose library subscriptions would give them access to new issues immediately upon publication, whereas UK scholars without library subscriptions would have to wait until the embargo period expired in order to gain access to new journal articles.

The threat to the viability of learned society journals and potentially also to commercially-published journals of a rapid and wholesale shift to either ‘gold’ or ‘green’ OA is also a matter of serious concern because journal revenues currently sustain a range of important learned society activities, which in turn help to sustain and develop the academic community. The many ways in which learned societies effectively subsidise their disciplines through, for example, postgraduate scholarships and bursaries, small research grants for early career researchers, seminar and workshop competitions which facilitate the exchange of ideas and generate publications, conference sponsorship, etc. are allat risk.

Another relevant difference between the sciences and humanities and social science disciplines in relation to ‘gold’ OA is the fact that HSS researchers are relatively less likely to have their research and publications funded by RCUK research grants – especially in the case of Early Career Researchers – and hence are relatively more likely to be reliant on (in many cases non-existent) institutional funds to pay APCs. Moreover, there is a greater emphasis on PhD students devising their own research topics, meaning that publications from their PhDs are more likely to be sole-authored. Consequently, while science PhDs may be able to get on the publications ladder via joint-authored publications under the auspices of their supervisor’s lab and grant funds, humanities and social science PhD students will be much more reliant on institutional funding which again may be non-existent.

We believe that in our own and other humanities and social science disciplines, a mixed economy will be necessary in order to fulfil the open access mandate in a sustainable and equitable way. This would include:

Hybrid journals funded primarily by subscriptions, but with a ‘green’ OA option (with a short embargo period) where needed by UK authors
Wholly ‘green’ OA journals with sufficiently long embargo periods to ensure subscriptions remain viable
The wide availability of pre-prints on institutional repositories and databases such as the Social Science Research Network (SSRN)
Low-cost, online open access scholarly journals, established via institutional websites or open source journal editing software such as Open Journal System (OJS).

The latter is the predominant open access model operating in our discipline at present, with these kinds of journals gradually increasing in number and profile, and deserving of policy support.

Rights of use and re-use in relation to OA research publications, including the implications of CC-BY licences

The implications of CC-BY licences are the subject of live debate within our discipline. On the one hand, it is argued that CC-BY licences effectively licence the theft of intellectual property, with anyone able to re-use research publications subject only to attribution of original publication. This includes re-use for commercial purposes, enabling research to be commercialised without the permission of and without any profit-sharing with the author. Commercial publishers will be able to make windfall profits from taxpayer-funded research without any return to the taxpayer. Universities may find themselves paying for the same research three times: first for the academic salary of the researcher, second for the APC to publish the work, and third for library copies of textbooks which reproduce that work in whole or in part.

On the other hand, some researchers take the view that any mechanism that may result in the wider dissemination of their work is a good thing and foregone reproduction fees are a small price to pay for that possibility.

We would suggest that the best way to deal with this conflict of views, at least until the longer-term implications of CC-BY become clear, would be to provide authors with the option of electing to licence their work either on a CC-BY or CC-BY-NC basis. These options would need explicitly to be supported and demanded by HEFCE and RCUK.

The costs of APCs and implications for research funding and for the taxpayer

‘Gold’ OA shifts the cost of research publications from the reader to the author. Just as all readers in the current economy are not equally able to bear these costs, so will there be a lack of equity between authors in the ‘gold’ economy. Inequities will exist between researchers whose work is RCUK grant-funded and those who conduct research on the basis of other grant or QR funding, between authors employed by well-resourced institutions and those employed by institutions which are less well endowed, potentially between established and early career researchers within institutions, potentially between authors working in areas considered more valuable and those working in marginalised areas within institutions, and certainly between authors from countries with mechanisms for paying APCs and those from countries whichare not in such a position (a point to which we return below).

The hope that RCUK rationing of APC funds will result in market forces driving down the cost of APCs seems unrealistic. Rather, it is likely that market forces will enable the most prestigious journals to maintain their APC charges at a high level, while other journals will be driven out of the market.

The fact that funding to pay APCs will be provided only for RCUK grant-funded research, and only for a proportion of the expected number of publications arising from that research, will exacerbate the inequities identified above.

In disciplines such as our own in which a relatively small proportion of research is RCUK grant-funded, it is likely that established journals will simply hybridise (as has already occurred in a number of cases), offering an OA option to those who need it to comply with the RCUK mandatewhile continuing to derive the bulk of their revenue from subscriptions, both within the UK and internationally.. It is clearly in publishers’ interests for that OA option to be ‘gold’ rather than ‘green.’ There is no indication that subscription costs will decrease on this model and no imperative or incentive to achieve this result. Universities will thus find themselves paying both subscription charges and APCs.

Under this scenario, as indicated above, it would make much more sense for RCUK and universities to advocate adoption of the ‘green’ OA model, with a relatively short embargo period. Subscription revenues, and hence the ongoing financial viability of journals, would not be threatened because the OA option would only apply to a minority of articles. And it would be much less costly for universities than having to pay twice for both subscriptions and APCs, and less costly for RCUK than having to subsidise APCs across all disciplines.

As well as the direct costs of APCs, the RCUK mandate and the provision of (inadequate) block funds for the payment of APCs are also creating substantial transaction costs for universities. The need to set up institutional publication funds, to devise rules, principles and procedures for distributing them, to consult widely in doing so, to administer the resulting schemes and to apply for funding, all take up a substantial amount of the time of academic and administrative staff and university managers, multiplied across the sector, which couldbe used more productively on core activities.

The level of ‘gold’ OA uptake in the rest of the world compared to the UK, and the ability of UK HEIs to remain competitive

In the fields of law and socio-legal studies, there has been absolutely no uptake of ‘gold’ OA in the rest of the world, and no indication of any prospect of it being taken up. A large number of journals in the law disciplineinternationally are published in-house by university law schools rather than by commercial publishers, and derive their revenues from subscriptions and online packages. These journals would not survive if their only source of revenue was APCs.

As noted above, the great majority if not all UK law and socio-legal journals would likewise become unviable if reliant on APCs as their sole source of revenue. This is not only because journals in this discipline publish a relatively small number of articles each year so that APCs may not cover the full production and editorial costs, but also because the majority of authors published by these journals are either UK authors whose work is not RCUK-funded, or overseas authors, and these groups will have no or limited access to funds to pay APCs. Even if journals were to survive under a fully ‘gold’ OA model, they would inevitably be publishing fewer or no overseas authors. Such isolation of UK research would be a most unfortunate consequence.

The isolation of UK research would be reinforced by the fact that RCUK grant-funded UK researchers will not be able to publish in most overseas journals, because those journals do not offer an OA option. This (presumably unintended) consequence of the RCUK mandate is again unfortunate, as it is likely to prevent some research reaching its optimal audience and thus reaching its full potential in terms of esteem and impact. The statement in the RCUK Guidance that authors will be “expected to select from among [compliant] journals when choosing where to publish their research” is far too simplistic and ignores disciplinary and international realities. If HEFCE adopts the same mandate in relation to entries to the REF2020, this problem will be significantly magnified.

By contrast with ‘gold’ OA, the OA model that has been widely adopted in the law discipline is SSRN, an online compilation of abstracts and full-text articles, some (but not all) of which are free to access. Most of the free access papers are working papers or pre-prints, but some are PDFs of published articles, where the journal has chosen to use SSRN as an avenue of dissemination. Although pre-prints do not strictly conform to the open access mandate as they do not constitute the ‘version of record’, they come as close as possible to satisfying the mandate while co-existing in harmony with a vibrant journal publishing economy.

Conclusion and recommendations

In our submission, neither the ‘gold’ nor the ‘green’ models of OA, as currently constituted, provide a viable way forward for peer reviewed journal publishing of legal and socio-legal research undertaken in UK universities. Within a mixed journal economy, however, we consider that a combination of (appropriately modified) ‘green’ and low cost, no-fee OA modelswould be preferable to ‘gold’ because they would:

Be less costly for HEIs, both directly and in terms of the costs of establishing and administering institutional publication funds
Avoid windfall profits to journal publishers
Maintain equity of access between UK researchers, regardless of career stage, institution or funding status
Maintain equity of access between UK and overseas researchers to UK journals

Even so, this would not solve the problem raised in paragraph 22 above of severely restricted publication options for UK researchers in the international context.

We would therefore recommend:

That the embrace of ‘gold’ OA as the preferred, ‘one-size-fits-all’ model for the publication of research produced in UK HEIs be rethought.
That RCUK and HEFCE undertake consultation on a discipline-by-discipline basis, taking into account the economy and ecology of peer reviewed journal publishing within each discipline, and determine which model or models are most likely to produce sustainable and equitable open access to UK research within each discipline.
That RCUK and any future HEFCE mandates specify that the aspiration of making UK research freely available does not restrict the ability of UK researchers to publish in the best available journal for their work, where that journal is a high quality international journal which does not offer an open access option. In this situation, publication of a pre-print on an institutional repository or SSRN should be sufficient to meet grant and any REF requirements.