Elsevier’s David Tempest explains subscription-contract confidentiality clauses
December 20, 2013
As we all know, University libraries have to pay expensive subscription fees to scholarly publishers such as Elsevier, Springer, Wiley and Informa, so that their researchers can read articles written by their colleagues and donated to those publishers. Controversially (and maybe illegally), when negotiating contracts with libraries, publishers often insist on confidentiality clauses — so that librarians are not allowed to disclose how much they are paying. The result is an opaque market with no downward pressure on prices, hence the current outrageously high prices, which are rising much more quickly than inflation even as publishers’ costs shrink due to the transition to electronic publishing.
On Thursday 11 April 2013, Oxford University hosted a conference called Rigour and Openness in 21st Century Science. The evening event was a debate on the subject Evolution or Revolution In Science Communication. During this debate, Stephen Curry of Imperial College noted that his librarian isn’t allowed to tell him how much they pay for Elsevier journals. This is the response of David Tempest, Elsevier’s Deputy Director of Universal Sustainable Research Access.
Heres’ a transcript
Curry [in reference to the previous answer]: I’m glad David Tempest is so interested in librarians being able to make costs transparent to their users, because at my university, Imperial College, my chief librarian can not tell me how much she pays for Elsevier journals because she’s bound by a confidentiality clause. Would you like to address that?
[Loud applause for the question]
Tempest: Well, indeed there are confidentiality clauses inherent in the system, in our Freedom Collections. The Freedom Collections do give a lot of choice and there is a lot of discount in there to the librarians. And the use, and the cost per use has been dropping dramatically, year on year. And so we have to ensure that, in order to have fair competition between different countries, that we have this level of confidentiality to make that work. Otherwise everybody would drive down, drive down, drive drive drive, and that would mean that …
[The last part is drowned in the laughter of the audience.]
So there you have it: confidentiality clauses exist because otherwise everybody would drive down prices. And we can’t have that, can we?
(Is this extracted segment of video unfairly misrepresenting Tempest? No. To see that for yourself, I highly recommend that you watch the video of the whole debate. It’s long — nearly two hours — but well worth the time. The section I used here starts at 1:09:50.)
Sauropod Vertebra Picture of the Week 
December 20, 2013 at 10:37 am
mwahahahaha!
is he a Tea Party member? He’s so good at admitting what he desperately tries not to admit ;)
December 20, 2013 at 12:36 pm
Is he admitting to price fixing?
December 20, 2013 at 12:53 pm
I did wonder about that. But I think not: my understanding is that “price fixing” refers specifically to when two or more competing companies agree on a fixed price for a commodity, thereby denying consumers the benefit of free-market competition. And example would be if all the paywall publishers agreed to keep their pay-per-view fees at $30 per article.
This is different from that. But I’m not sure about its legality.
December 20, 2013 at 3:24 pm
A NDA is very common in contracts, but it is usual to allow disclosure to a limited number of people, including within one’s organisation and one’s legal advisors.
December 20, 2013 at 3:39 pm
Requiring a non-disclosure is perfectly legal. However, given that these publisher NDAs usual come with a threat of revoking journal access should that be broken it creates an element of coercion. i.e. One shouldn’t feel forced to sign an NDA, because the alternative of not doing so would bring severe consequences.
I believe this has come up before publicly, but never yet tried in court. Anyone know?
December 20, 2013 at 4:40 pm
ALL NDAs come by definition with a form of coercion, because to ignore the NDA is a breach of the contractual terms, and the publisher is entitled to withdraw access to the materials in the event of any major breach. But is the NDA link to actions for a breach of contract “unfair”? I am pretty sure the link between an NDA and cessation of subscription for a breach of contract would NOT be considered unfair. But it would be interesting to have a test case.
December 20, 2013 at 8:03 pm
Martin Eve reminded me on Twitter of his blog post Gov and RCUK responses to Open Access Inquiry: eradicating non-disclosure clauses. The crucial point: “Higher Education Institutions should not be required by publishers to accept non-disclosure clauses in publishing contracts which involve public funds.” The Office of Fair Trading and Competition Commission may become involved.
December 21, 2013 at 7:54 am
As a matter of interest, while the use of confidentiality clauses in scholarly publishing is mainly associated with subscription publishers, those offering OA publishing services (i.e. by means of so-called platinum OA) are also using confidentiality clauses: http://goo.gl/jTOcOj.
December 21, 2013 at 11:39 am
[…] haben? Darauf hat mal jemand Elsevier angesprochen, einen der übelsten Vertreter dieser Branche. Antwort: Das machen wir, weil sonst die Preise runtergehen. Nein, […]
December 21, 2013 at 11:52 am
I think we’re on the same side of the argument here, but I disagree with “coppenheim” who suggests all NDAs are by definition a form of coercion. For example, I can go interview for a job and sign an NDA, but I am free to not sign the NDA and go interview for a similar job elsewhere. That’s not a practical choice for libraries, as the choices of journals are not equivalent like they are with jobs or vendors. There’s only one Science, Cell, Nature, etc. That’s what makes the practice highly questionable and one that would be interesting to see play out in the courts.
December 21, 2013 at 12:31 pm
I find the use of confidentiality clauses for Gold OA disturbing, although I accept Jason’s point that because publishing services are not monopolies like subscriptions are, the situation there is less coercive.
Jason, would you guys at PeerJ object to your university partners disclosing the terms of their deals with you?
December 21, 2013 at 6:22 pm
Jason, you say NDA’s are not coercive, but ruin your argument by admitting that certain journals have such power that they are the much stronger party in any negotiation with a library desperate to take out a subscription. As you say, it would be interesting to have a court case, but which library is willing to take that on?
Charles
December 21, 2013 at 6:39 pm
[…] haben? Darauf hat mal jemand Elsevier angesprochen, einen der übelsten Vertreter dieser Branche. Antwort: Das machen wir, weil sonst die Preise runtergehen. Nein, […]
December 22, 2013 at 9:28 am
Mike – To answer your question, we don’t believe in using confidentiality clauses.
December 22, 2013 at 1:04 pm
Thanks, Jason, great to see my faith in PeerJ vindicated once more.
December 22, 2013 at 1:29 pm
[…] came across this a little while ago (here, where the context is explained in more detail). It comes from a conference about the future of […]
December 23, 2013 at 4:21 pm
To be fair, he related to the price differences between countries not simply the competition.
December 23, 2013 at 5:00 pm
Yes, I didn’t understand that part at all: “And so we have to ensure that, in order to have fair competition between different countries, that we have this level of confidentiality to make that work”. Can you explain that?
January 1, 2014 at 11:41 am
You can tell when you’re being lied to (or to put it more charitably, when somebody is advancing an argument they know to be weak) when there is a lot of flannel and quite unnecessary lack of clarity. By that measure, what David Tempest says is pretty extreme.
“Well, indeed there are confidentiality clauses inherent in the system, in our Freedom Collections.”
What does “inherent in the system” mean? He wants us to think it is there pretty much by definition. But it isn’t there by definition, since in principle one could release the information and still have Freedom Collections.
“The Freedom Collections do give a lot of choice and there is a lot of discount in there to the librarians.”
They don’t give any choice that actually matters. For example, they don’t allow people in different subjects to negotiate separately. So mathematicians and physicists find that they are indirectly paying large sums to meet the needs of biologists and medics. As for the discount, it is on journals that the librarians could happily do without.
“And the use, and the cost per use has been dropping dramatically, year on year.”
How is this measured? Does he mean that the use has been dropping dramatically, or was that a slip of the tongue? Does a brief glance at an article via Science Direct count as a use?
“And so”
There seems to be a missing step here.
“we have to ensure that, in order to have fair competition between different countries,”
Like Mike Taylor, I’m baffled by this. In what sense are different countries competing with each other?
“that we have this level of confidentiality to make that work.”
To make what work exactly?
“Otherwise everybody would drive down, drive down, drive drive drive, and that would mean that …”
As the audience could immediately see, the point he is unwittingly making here is that Elsevier wants to screw each country for what it can afford, which varies a lot from country to country. If a rich country could see that a less rich country was paying a lot less for its journals, it might be less willing to accept the terms offered by Elsevier.
January 1, 2014 at 12:17 pm
Indeed there is much about Tempest’s answer that is baffling — I deliberately didn’t comment in the original post because I wanted to let his words stand for themselves. In particular, I can’t here the phrase “inherent in the system” without thinking of the Constitutional Peasants sketch from Monty Python and the Holy Grail, and indeed every hit on the first page a a Google search for the phrase is either to that sketch or to something that references it. Check it out — the relevant part starts at 2:50. Can David Tempest have had this in mind?
January 1, 2014 at 8:53 pm
I agree it’s very clear that he’s saying he wants Elsevier to be able to charge more in rich countries than in poor ones. Although in general I have precisely zero sympathy for anything Elsevier does, I have to say I’m not sure that *that*, as such, is a bad thing.
But, of course, if Elsevier were *only* charging appropriately more in rich countries than in poor countries, they’d have little to fear from making the prices public. To the complaint “But you only charge the Eduardo Mondlane University 1/10 what you charge us” the response “Yes, that’s because they’re in Mozambique and you’re in the United States, where GDP per capita is more than 10x higher” is obviously reasonable and wouldn’t force them to change anything.
Clearly what they are *actually* afraid of is that their prices are (1) too damn high across the board and (2) wildly inconsistent in ways that *aren’t* justified by differences between richer and poorer countries. And that’s what they’re really afraid of exposing.
January 1, 2014 at 9:54 pm
Has anyone tried filing FOIAs to public research universities to get these contracts? Or even just an invoice. (Berkeley and Michigan might be interesting)
January 2, 2014 at 5:49 am
[…] Well, recently Elsevier representative David Tempest stepped up to the plate to explain the necessity of confidentiality clauses in Elsevier’s contracts, and his attempt … um…. Miss South Carolina comes off as articulate by comparison: https://svpow.com/2013/12/20/elseviers-david-tempest-explains-subscription-contract-confidentiality-c… […]
January 2, 2014 at 9:20 am
That Billy Madison video is gold!
January 2, 2014 at 10:25 am
Tempest is clearly in the wrong job. It was a poor response to what is a very important question. It will be interesting to see whether Elsevier keeps him in this important market facing position – I can’t see how they could. Moreover, has anyone seen any form of follow up response to the original question posed? Silence surely means that Elsevier is happy with how Tempest answered the question? Or just that he answered the question truthfully and there really isn’t any follow up that could spin it any other way….
January 2, 2014 at 10:39 am
Or it could just mean that they felt the damage was limited to the couple of hundred people who were in the room when Tempest gave that answer, and that following up more publicly would give more publicity to the original statement. An order of magnitude more people have seen it now, but it’s still nowhere near enough.
January 2, 2014 at 4:14 pm
[…] to “Elsevier’s David Tempest Explains Subscription-Contract Confidentiality Clause.” You can watch the video or read the article. Either way, here’s the quote to […]
January 13, 2014 at 6:00 am
[…] I’ve been thinking a lot about this interesting situation with Elsevier, which David Tempest’s remarks at the Oxford Evolution or Revolution debate highlighted: they can’t afford (literally or […]
January 29, 2014 at 9:43 pm
[…] Elsevier’s David Tempest explains subscription-contract confidentiality clauses […]
February 12, 2014 at 1:38 am
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February 12, 2014 at 3:03 pm
[…] Transcription : Personne du public: I’m glad David Tempest is so interested in librarians being able to make costs transparent to their users, because at my university, Imperial College, my chief librarian cannot tell me how much she pays for Elsevier journals because she’s bound by a confidentiality clause. Would you like to address that? [Applaudissements du public] David Tempest: Well, indeed there are confidentiality clauses inherent in the system, in our Freedom Collections. The Freedom Collections do give a lot of choice and there is a lot of discount in there to the librarians. And the use, and the cost per use has been dropping dramatically, year on year. And so we have to ensure that, in order to have fair competition between different countries, that we have this level of confidentiality to make that work. Otherwise everybody would drive down, drive down, drive drive drive, and that would mean that… Source : Elsevier’s David Tempest explains subscription-contract confidentiality clauses […]
February 17, 2014 at 11:59 am
[…] Deputy Director of Universal Sustainable Research Access, David Tempest, has recently disclosed a staggering justification of the confidentiality of Elsevier’s […]
April 24, 2014 at 9:41 am
[…] Or would it? If you’ve read this far, then your reward is the following rather wonderful video (which has done the rounds for a while, so you may have seen it) of David Tempest, from Elsevier, explaining why confidentiality clauses are necessary. Many thanks to Mike Taylor for obtaining it. A transcript can be found on his blog. […]
May 13, 2014 at 8:01 am
[…] de confidentialité sont nécessaires. Un grand merci à Mike Taylor pour l’avoir obtenue. Vous en trouverez une transcription sur son […]
June 16, 2014 at 10:50 pm
[…] Many journal publishers require universities to sign secrecy agreements that forbid them from saying how much they paid for journal subscriptions. Elsevier argues that confidentiality agreements allow them to tailor their prices to suit individual subscribers, though David Tempest, a deputy director at the publisher, told a meeting in Oxford last year that they stopped customers from driving down prices. […]
August 19, 2014 at 6:40 am
[…] discussion, en a fait état malgré lui. Sa déclaration a été filmée et publiée dans un autre blog. Le propos de l’éditeur est d’une parfaite clarté. Il a le charme brut d’une […]
May 6, 2015 at 10:48 pm
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May 21, 2015 at 12:03 am
[…] These Elsevier and Springer operations do more than publish journals. They also make money from a few other sources, such as databases of medical and legal information. Rather than their overall profit, we’d like to know how much they make from journal articles specifically. There’s no way to know this, because the companies don’t release this information. Elsevier even requires its universities to sign confidentiality agreements so that no one can know how much the price of the subscriptions are. […]
November 25, 2016 at 8:35 pm
[…] then I remembered the classic explanation of confidentiality clauses from Elsevier’s David Tempest: “we have this level of confidentiality […] Otherwise everybody would drive down, […]