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We are economists who study the prices of academic journals. Two of us maintain a website, journalprices.com that collects data on journal prices, citations, and number of articles published and posts estimates of value per dollar for each of about 7,000 journals. With the advent of online publishing, many universities purchase their subscriptions from large publishers in the form of bundled site licenses allowing electronic access to nearly all of a publisher's subscription list at a price that depends on their historical expenditures on print journals from that publisher. The University of Wisconsin librarian, Ken Frazier, christened this system the "Big Deal".

Before the advent of electronic publishing, commercial publishers charged the same institutional subscription price for print subscriptions to all libraries, independently of their previous holdings. In this environment the "consumer economics" of selecting and maintaining a journal collection subject to a fixed budget was relatively simple. With the Big Deal, librarians face a much more difficult problem. Each library typically negotiates the terms of its own multi-year agreement with major publishers. Prices and access in the future will depend on historic expenditures and current cancellations, Therefore the critical economic elements of bundled site license contracts are multi-dimensional, with major dependence on details such as the terms under which the library can drop current subscriptions to individual journals, caps on price increases during the term of the contract, and a variety of detailed fees assessed over time. Because these contracts are highly variable, depending in part on the characteristics of universities and in part on the skill and persistence of library bargaining, it is important that we gather a large sample of contracts for economic analysis.

Many of the Big Deal contracts signed by universities have "confidentiality clauses" that state that the library must not share information contained in the contract. Fortunately, most states have open records laws that invalidate such clauses and require state institutions including universities to make these contracts publicly available. We have invoked these laws in requests to a large number of libraries throughout the United States. In June, 2009, Elsevier contested our request for their contract with Washington State University. The judge ruled unequivocably in our favor and we have received the requested contract from WSU. As of August 10, 2009 we have received copies of contracts from 36 institutions in 28 states. We have been told that several more contracts are on the way.

The Association of Research Libraries Board of Directors recently passed a resolution "to strongly encourage ARL member libraries to refrain from signing agreements with publishers or vendors, either individually or through consortia, that include nondisclosure or confidentiality clauses." This resolution also explicitly endorsed our project to collect and analyze university licenses with large publishers.

Our research has both a scientific purpose and a public service motive. As economists interested in industrial organization and pricing policy and in the economics of information technology, we find that the academic journal industry presents a fascinating case study of such practices as price discrimination,
bundled sales, and long-term contracting in an imperfectly competitive industry.

As citizens of the academic community, we are interested in helping librarians to understand the dynamic economic problem that they face and aiding them in negotiating effectively with large publishers. We plan to release a collection of information and analyses that will serve this purpose.

We thank the many librarians and university officials who have gone to the effort of collecting these contracts for us. We invite librarians who have not yet been asked to consider sending us copies of their contracts with the publishers listed below. For public institutions who have contracts with confidentiality clauses, we will be happy to work with you by providing a formal request that invokes your state open records act.

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Contracts Collected as of August 13, 2009

Elsevier: We have so far collected unredacted contracts with full details of prices and terms from 26 universities and 3 consortia. Two universities sent us redacted copies that reported total amounts paid but blacked out significant financial details of the terms of the contract.

Springer: We have received unredacted copies of Springer contracts from 14 universities. These include consortial contracts with 5 different consortia through which a total of 158 institutions receive subscriptions. Three universities sent us redacted copies.

Emerald: We have received unredacted copies of Emerald contracts from 21 universities and one consortium.

Wiley: We have received unredacted copies of contracts with Wiley from 16 universities. These include consortial contracts with 4 consortia through which about 100 institutions subscribe.

Sage: We have received unredacted copies of contracts with Sage from 11 universities and 5 consortial contracts through which about 100 universities receive subscriptions

American Chemical Society: We have received unredacted copies of contracts from 23 universities and one consortium.

Taylor & Francis: We have received unredacted copies of contracts from 9 universities and one consortium with 10 participating universities.

Oxford University Press: We have received unredacted copies of contracts from 9 universities and from two consortia with a total of 34 participating universities.

Cambridge University Press: We have received unredacted copies of contracts from 5 universities and from one consortium with 10 participating universities.

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Elsevier sued Washington State University in Whitman County Superior Court to prevent release of an unredacted copy of their contract with WSU. Prior to suing, they offered us redacted copies that would report the toal amount paid but not the detailed economic terms of the contract. We rejected this proposal because the details that would be expunged are of critical importance for understanding the long-term economic implications of the contracts. Elsevier then sued to block release of the contract. Elsevier argued that such details were a trade secret and that their release would give an unfair advantage to rivals. The Washington Attorney General's office contested Elsevier's claim and prevailed in court. WSU then provided us with an unredacted copy of their Elsevier contract. Here is a copy of the judge's ruling.

Here are links to court documents prepared by attorneys for Elsevier and by WSU.
Accounts of this trial and reactions to its outcome can be found in a press release from the ARL and in the Library Journal.

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We made a request under the Texas open records act to the University of Texas System--a consortium of Texas universities--for copies of their contracts with the publishers listed above. The consortium asked the state Attorney General's office for a ruling on whether they were bound by this request. The AG's office sent letters to each of these publishers asking if they had objections. Lawyers for Elsevier and Springer responded with objections. There were no objections from the other publishers.

The Attorney General ruled that the state law requires the system to release copies of all of these contracts to us. The AG sent a letter with a detailed explanation of this ruling. We believe that the following points made by the Attorney General are particularly cogent.

"Springer asserts that its contracts are governed by a strict confidentiality provision. Information is not confidential under the Act, however, simply because the party that submits the information anticipates or requests that the information be kept confidential...In other words, a government body cannot overrule or repeal provisions of the Act through an agreement or contract."

"...we determine that Elsevier and Springer have failed to demonstrate that any portion of the submitted information meets the definition of a trade secret...We note that pricing information pertaining to a particular contract is generally not a trade secret because it is 'simply information as to single or ephemeral events in the conduct of business'"

"This office considers the prices charged in government contract awards to be a matter of strong public interest. Moreover the terms of a contract with a government body are generally not excepted from public disclosure."