Germany is thought to be saving more than €10 million (£8.7 million) a year in journal subscription fees after calling the bluff of the world’s biggest academic publisher during a negotiation stand-off.

Elsevier, long criticised by some academics for what they see as its excessive profits and resistance to open access, is now afraid to cut off German universities’ access to its journals even though their contracts have expired, according to an outspoken negotiator for the German side.

The success of Germany’s nationwide negotiating coalition, Project Deal – whose tough line has in effect resulted in nearly 200 institutions using Elsevier services for free – has raised questions about whether other countries should and could also play hardball.

Bernhard Mittermaier, a member of the Deal project and negotiating team, told Times Higher Education that German universities were now saving “enormous amounts of money”.

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During negotiations between Deal and Elsevier, which have stalled for more than a year over disagreements on pricing, open access and how costs should be calculated, German universities have let their individual contracts lapse as they seek a collective, national deal.

But at the beginning of both 2017 and 2018, the publisher has either not cut access or has rapidly restored it after doing so.

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It is thought that internal estimates put the sum saved in 2017 at about €10 million, with the figure for 2018 likely to be even higher as ever more contracts end.

Asked why he thought the publisher had not cut the country off, Dr Mittermaier said: “It’s hard for them [Elsevier] to keep up their self-image of being supportive to science when they cut off access.”

In addition, “they fear that it [the German research system] works without access”, he added. German institutions say that they have long prepared for a loss of access, with an extensive system of interlibrary loans on standby.

By demonstrating an unwillingness to sever access for a second time at the beginning of this year, Elsevier’s “bargaining position has dramatically decreased in the last months”, Dr Mittermaier added.

Bizarrely, German institutions have protested to the publisher about not being cut off. “Since Elsevier did not explain the legal or financial conditions [of continued access], we recommended that the concerned institutions object to avoid the semblance of a prolongation of the contracts,” said a spokesman for the German Rectors' Conference.

A handful of institutions have been without Elsevier access since the beginning of 2017 but cannot ask the publisher to reconnect them for fear of appearing to agree a contract, said Dr Mittermaier, who is head of the library at the Jülich Research Centre. They were, nevertheless, coping “very well”, he insisted.

Asked why it had not severed access, Elsevier said that it had an “obligation to support German research” and to “enable libraries to provide seamless service during the holiday season and to continue the ongoing discussions”.

The two sides still appear to be separated by a fundamental disagreement over how publishing should be paid for. Germany wants to pay per article published by its researchers – with full open access – while Elsevier has argued that this would be unfair because it would allow German researchers to read work published by other scholars from countries without paying anything.

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“There is a flaw in their logic,” said Dr Mittermaier; if all countries paid to publish their own research but still had to subscribe to articles published by overseas authors, publishers would be paid twice for each article – in effect “double dipping”, he said.

The deal Elsevier wants of Germany is therefore impossible to “scale” to the rest of the world, Dr Mittermaier said. “We are willing to pay for the German share of publications”, and other countries “should do the same”, he said. It was “hard to predict” whether a deal would be struck this year, he said, although another meeting was scheduled for February.

Open-access campaigners across Europe have taken an increasingly hard line against publishers, arguing that universities need to be prepared to walk away from the negotiating table – and in a position to survive reduced journal access if necessary.

So far, however, Germany is one of the few countries to have called a publisher’s bluff, although it is not unprecedented – Dutch universities lost access to the much smaller Oxford University Press last year after negotiations failed.

Finland and South Korea recently struck deals with Elsevier that have left some disappointed, and fall far short of the total open-access, pay-per-paper aims pursued by Germany.

On 17 January, Finland agreed a three-year deal worth just under €27 million, which includes a 50 per cent discount when researchers publish open access in some journals. However, “they have not really released much detail at all”, said Toma Susi, a Finnish physicist based at the University of Vienna. Activists will now have to fight to see specifics of the deal using freedom of information requests, he added.

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Without knowing the details – such as how much universities were previously paying, and how many articles they read and published – it is impossible to make a judgement on whether countries really are striking good deals with publishers, Dr Mittermaier said.

Neither Elsevier nor the National Library of Finland would provide the agreement or disclose further details. The library said that it had not signed a non-disclosure agreement with the publisher, but cited a legal “principle of loyalty” that prevented release.

Walking away from negotiations and coping without Elsevier had been an “option”, according to a spokeswoman for the library .But Elsevier's open-access discount was seen as an “important step” and so a deal was struck, she added.

South Korea, meanwhile, was reported on 15 January to have agreed to price rises of between 3.5 per cent and 3.9 per cent, a hike that Dr Mittermaier described on Twitter as “outrageous”. “I swear #DEAL will not accept a 3.6 [per cent] price increase,” he tweeted of the deal.

There are also questions over whether other countries should have driven a harder bargain. Privately, some on the German side believe that a Dutch deal secured in 2015, aiming for 30 per cent open access by 2018, did not go far enough. At the end of 2016, the UK, through Jisc, which provides digital infrastructure for universities, struck a five-year deal with Elsevier that many in the open-access community considered to be insufficiently ambitious.

Dr Mittermaier argued that Jisc had been afraid to forgo Elsevier access. A future collective effort to strike a better deal would be much harder to pursue in the UK than in Germany, he also argued, “because universities are opponents [in the UK] and they don’t work together to that extent [as they do in Germany]”.

Asked whether Jisc had been prepared to walk away from negotiations, Liam Earney, director of Jisc Collections, said that “we investigate alternative means of delivering access to materials, the costs and the associated risks”, and in consultation with universities in “Europe and beyond…we constantly review and update our approach in this area”.

One elephant in the negotiating room is the pirate site SciHub, an illicit provider of millions of papers free of charge, which potentially gives countries at least unspoken leverage with publishers threatening to end their journal access.

But global usage of SciHub dropped sharply at the end of 2017 just as several domains were taken down after legal action from publishers. “We do not use SciHub as an argument in the negotiations,” Dr Mittermaier insisted.

For now, Germany was the only country “still standing” in its negotiations with Elsevier, he said.

But France, Switzerland and Austria are planning to take a similarly hard line against the publisher when they next negotiate their contracts, Dr Mittermaier said, adding: “Everybody is looking at Germany.”

david.matthews@timeshighereducation.com

A game of brinkmanship: Germany’s negotiations with Elsevier

January 2017
Negotiating collectively with Elsevier for the first time, about 50 German institutions have their access to the publisher’s journals cut off after their subscription deals expired without a new contract in place.

February 2017
Elsevier restores access for institutions that had been cut off, reflecting the company’s “support for German research” and its “expectation that an agreement can be reached”.

July 2017
With no deal in place, Berlin’s biggest universities – the Free, Humboldt and Technical universities of Berlin, as well as Charité – Universitätsmedizin Berlin – say that they will not extend their current contracts beyond the end of 2017.

September 2017
Germany’s research sector draws up plans to cope with the end of many institutions’ Elsevier contracts at the end of 2017, focusing on sharing between colleagues and the use of interlibrary loans.

October 2017
German professors resign from editorial positions at Elsevier journals in support of the country’s ongoing negotiations with the publisher.

January 2018
Many institutions’ contracts expire, but Elsevier maintains journal access for these universities, “while we continue to work with HRK [the German Rectors’ Conference] on a solution and, specifically, a one-year extension to existing contracts, covering 2018”.

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