Beware a victory in the anti-publisher US lawsuit

The underbelly of the peer-review process engaging academics has remained mostly static for many decades.

Numerous researchers serve on editorial boards, providing their expertise to maintain the standards of the peer-review process. Most act as ad hoc reviewers, assessing the quality, correctness and benefits of the research described in the manuscripts. Such activities are academic professional services, and they provide an invaluable benchmark for the evaluation of colleagues for promotion and tenure. However, they attract little or no direct financial compensation, even as large profits are reaped by publishers.

This is the context of the anti-trust class action lawsuit filed by Lucina Uddin, an academic scientist at the University of California, Los Angeles, against six for-profit publishers of academic journals: Elsevier, Wolter Kluwer, Wiley, Sage Publications, Taylor & Francis and Springer Nature. The suit notes that in 2023 “Elsevier alone generated $3.8 billion [£2.9 billion] in revenue from its peer-reviewed journals, with an operating profit margin of 38 per cent”, while such publishers limit compensation to reviewers and restrict authors’ freedom to submit their work simultaneously to multiple journals and to share their findings while papers are being reviewed.

The writ seeks to tilt the balance of power between publishers and academics, but it is worth highlighting the similarities to a recent shift in the power balance between universities and student athletes in the US – and the worrying unintended consequences of that.

At one time, student athletes had to maintain their amateur status to participate in college sports, a rule the National Collegiate Athletic Association (NCAA) vigorously protected. Eventually, lawsuits changed that. The first wall to fall was the so-called Name, Image and Likeness (NIL) rule, permitting student athletes for the first time to obtain endorsement contracts with private entities. More recently, the legal ground has been paved for student athletes to be directly compensated, resulting from a settlement valued at $2.8 billion.

All such efforts have created a compensation pathway for student athletes so that college and university athletic departments are no longer the sole beneficiaries of their performances. They also make colleges’ interactions with student athletes more transactional than relational, even in schools – the vast majority of the total – that only have modest athletic department programmes and budgets.

Then there is the issue of how schools paying student athletes will translate into performance on the playing field; a one-size-fits-all compensation package might create bitterness and resentment between stars and role players, since both groups could end up receiving comparable compensation.

But most concerning is the impact on sports that don’t generate spectator and booster revenue, some of which might be casualties if schools can no longer afford to maintain them. This could also have a trickledown effect on the US Olympic team.

It remains to be seen whether Uddin’s lawsuit has sufficient merit to move the needle on academic publishing. What is certain is that the six publishers have much to lose – and, hence, a vested interest in coming to some mutually beneficial settlement. Reviewers being compensated for their efforts and the review process becoming more open and flexible are both possibilities. 

What is not clear in the lawsuit is how professional societies that oversee journal publications will be affected. The three professional societies of which I am a member (the Association for Computing Machinery (ACM), the Institute for Operations Research and the Management Sciences (INFORMS) and the Society for Industrial and Applied Mathematics (SIAM)) all have large publication centres that contribute significant funds to their community operations.

Their structures for supporting publication are similar: institutions paying subscription fees that give their members access. The ACM publication model has gravitated to a tiered payment system based on institutions’ content contributions, effectively making all subscriber institutions’ publications open access, something that researchers generally support. 

The problem is that the review process for non-profit professional society journals is the same as for the for-profit publisher journals. Any outcome from the anti-trust class action lawsuit, therefore, is likely to affect society publications, too. That could end up saving the for-profit journals from being forced to make huge payouts to reviewers – or it might end up choking off the excess revenue that their parent societies need to serve their memberships.

In other words, as in college sports, what appeared an honourable attempt to right a wrong could end up creating new problems that few would have predicted. Just ask a small college athletic department how it will manage its budget in the aftermath of the NCAA settlement, with all its student athletes now expecting to be paid.

We might all dislike the way that academic publishing is dominated by huge multinational corporations that funnel billions of dollars out of the university research ecosystem and into shareholders’ pockets. But academics cheering on Uddin should be a little more careful about what they wish for – and come up with a better way to achieve it.

Sheldon H. Jacobson is a professor of computer science at the University of Illinois