Abstract
There are very few (published) accounts of editorial misconduct, and those that do exist are almost exclusively focused on medicine-related areas. In the present article we detail a case of editorial misconduct in a rather underexplored domain, the social sciences. This case demonstrates that although legal systems provide different instruments of protection to avoid, compensate for, and punish misconduct on the part of journal editors, the social and economic power unbalance between authors and publishers suggests the importance of alternative solutions before or instead of bringing a lawsuit to court. It puts forward strong arguments in favour of the need for effective regulatory bodies so as to achieve and maintain a culture of research integrity by all involved in the process.
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Notes
In http://blogs.bmj.com/bmj/2008/10/21/richard-smith-a-ripping-yarn-of-editorial-misconduct/, accessed on 24 October 2009.
In http://publicationethics.org/about, accessed on 23rd October 2009.
Search made on 22nd October 2009 in Scopus, which is considered the largest abstract and citation database of research literature and quality web sources, including nearly 18,000 peer-reviewed journals from more than 5,000 publishers (in http://info.scopus.com/overview/what/, accessed on 22nd October 2009).
If we consider EBSCO database instead, including the Business Source Complete, Econlit and Academic.
In his book, published in 2006, ‘The Trouble with Medical Journals’ (published by The Royal Society of Medicine Press), Richard Smith, former editor of BMJ, dedicated a full chapter (Ch. 12) to editorial misconduct where he details a couple of nasty cases where editors have acted incorrectly.
Taking as reference the distribution of journal titles by scientific area in Scopus and ISI Web of Knowledge (Journal Citation Reports 2008), according to which around 23% of journals are from the social science areas, it is interesting to note that COPE membership in terms of journal titles represents a similar share of social science journals (Source: authors computations based on data available in http://publicationethics.org/allmembers, accessed on 23rd October 2009).
See http://publicationethics.org/files/u2/08_Editor_complaint.pdf, accessed on 23rd October 2009.
Only 12 journals out of the 4755 journals which by February 2010 were members of COPE belong to the innovation studies area. These 12 journals belong to four publishers: Elsevier (Research Policy, Technology in Society, Technovation), Emerald (European Journal of Innovation Management, Journal of Knowledge-based Innovation in China, Journal of Science and Technology Policy in China), Taylor and Francis (Economics of Innovation and New Technology, Prometheus, Technology Analysis and Strategic Management) and Wiley (Journal of Product Innovation Management, R&D Management) (Source: authors computations based on data available in http://publicationethics.org/allmembers, accessed on 23rd October 2009).
This case is explained in detail by the authors in a paper published in The Harvard Health Policy Review (Spring, 2008), and summarized in BMJ Group Blogs by Richard Smith (A ripping yarn of editorial misconduct, October 2008).
For legal reasons, we conceal the names and all information related with the identity of the journals, publisher, authors, editor, and guest editor.
From the nine editors contacted six responded. To maintain confidentiality, they are here identified with letters (A to I), attributed in a randomly way.
On the notion of “literary work”, see Cornish and Llewelyn (2007: 421–425).
Section 1(1) of the Copyright, Designs and Patents Act 1988.
Section 3(2) of the Copyright, Designs and Patents Act 1988.
The French Code de la Propriété Intellectuelle refers, in several articles, to the expression “oeuvres de l´esprit” to identify the object of protection in intellectual property law. See, for example, Article L112–1: “Les dispositions du présent code protègent les droits des auteurs sur toutes les oeuvres de l´esprit, quels qu´en soient le genre, la forme d´expression, le mérite ou la destination” (The legal provisions of the present code protect copyright of all works of spirit, whatever may be the mode or form of its expression, the merit or the intended purpose—translation by the authors).
The right of disclosure is here considered in a broad sense, as the exclusive right of the authors to bring their work to the public’s knowledge, in any manner or form. In this broader sense, the right of disclosure includes in its ratio also the right to publish, described as the authors’ exclusive right to reproduce or allow the reproduction of their work.
Artigo 41.°, n.° 3 Código do Direito de Autor e dos Direitos Conexos.
In this context, it is interesting to remember the words of the French Court in the case Camoin et Syndicat de la Propriété Artistique c. Francis Carco, Aubry, Belattre et Zborowski (Trib.Civ. de la Seine, 15 November 1927, DP. 1928.2.89, confirmed in Carco et autres c. Camoin et Syndicat de la Propriété Artistique, Cour d’Appel de Paris, 6 March 1931, DP. 1931.2.88). This case dates back to 1927. Camoin was a pictorial artist. One night of 1914 he decided to rip and throw away some of his paintings. However, the next morning, a rag picker found the paintings and sold them to an art collector. Over the years, they were sold several times, until, 11 years later, Camoin discovered that these works had been put up for sale. Camoin then objected in court against the disclosure of these works without his consent. The court decided that, in this particular case, the author’s right to disclosure (droit de divulgation) should prevail over the right of property of the paintings. In the courts’ words, by disclosing his works against his will, the defendants had violated the author’s personality, since the work of an author is “the expression of his thought, his personality, his talent, his art, and, in philosophical terms, of his individual self” (“[L]’expression de sa pensée, de sa personnalité, de son talent, de son art, et l’on pourrait dire en termes de philosophie, son moi individuel”)—for a more developed description of this case, see Teilmann (2005: 78–79).
Article 6bis(1) of the Berne Convention states: “Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation”.
See Cornish and Llewelyn (2007: 492–497).
On the Italian contratto di edizione per le stampe, see Sanctis and Fabiani (2007).
The solutions presented below are representative of the common core principles of each main European legal family, but do not take into consideration the specificities of individual countries’ legislation.
For further information on this subject, see Peel (2007: 67–72).
In the civil law jurisdictions it is usual to distinguish, within these conditions depending on the discretion of one of the contract parties (called “condition potestative” in France and “condizione potestativa” in Italy), between those in which the fulfillment of the condition depends purely on the discretion of the debtor (a simple “because I want to”) and those in which the fulfillment of the condition depends on a will influenced by outside interests, objectively appraised. Only the first type of conditions is usually considered void. See, for the French legal system, Carbonnier (2000: 263–264), for the Italian legal system, Roppo (2001: 616–619) and for the Portuguese legal system, Pinto (2005: 565–566).
Also alerting to the possible difficulty in distinguishing between a contingent condition precedent a parte debitoris and an option contract, Roppo (2001: 618): “Immaginiamo adesso che la condizione sia applicata a una compravendita, i cui effetti sono subordinati a che l’alienante dica che vuole alienare. Un contratto del genere non fa scandalo, perché corrisponde in sostanza a un’opzione di vendita”.
All legal systems of the European Union recognize the validity of acceptance by conduct. See, for all, Lando and Beale (2000: 169–170).
Referring to the objective nature of the “Test of Intention”, in England, see Beatson (2002: 31). Also addressing this issue, in Germany, Fikentscher and Heinemann (2006: 91–97) and, with more details, Brehmer (1992). In the context of the formation of contracts in Italy, Roppo describes the notion of “conclusive behaviour” (comportamenti concludenti) as an active behaviour which, in the given context, has the semantic meaning that the party wants to enter the contract (Roppo 2001: 199–201). As an exception to the objective principle, the French legal system adopts a subjective perspective, stating that the person will only be bound if it is his real intention to be bound. However, a party alleging, in this context, that they had no intention to be bound must make this allegation plausible. This is probably why Carbonnier states that, even though in France the declaration of will only has value if it is consistent with the inmost will (subjective principle) and in Germany the declaration of will is the essence of the contractual consent (objective principle), it is important not to exaggerate the difference of consequences on a practical level (Carbonnier 2000: 91).
The objective principle was also adopted by the Principles of European Contract Law, in Article 2: 102, which states that: “The intention of a party to be legally bound by contract is to be determined from the party’s statements or conduct as they were reasonably understood by the other party” (Lando and Beale 2000: 143).
Moreover, the elaboration of the first proofs by the publisher can be interpreted as an act of performance of the contract, since it is already part of the process to publish the paper. Roppo qualifies this performance as being part of the negozi di attuazione, that is, particularly contracts in which the will to contract is revealed by the beginning of performance (Roppo 2001: 200).
One important problem, not directly related to the legal systems, is the eventual fear of the author to be blacklisted and prevented from publishing his future works. Writing about this problem in relation to freelance authors, see D’Agostino (2005: 167)
The possibility of the author being granted specific performance in this case is not unanimous, even if we consider only the common law jurisdiction. On this subject and mentioning two cases with opposite decisions (one recognizing specific performance of a contract to publish a piece of music and another denying specific performance of a contract to publish a book on the grounds that it would require continued co-operation between the publisher and the author), see Peel (2007: 1114, footnote 210).
However, it is important to note that along with the compensation for possible financial damages, the authors could eventually demand damages for injury to their academic reputation (Beatson 2002: 594–595).
These ideas are also expressed in the Summary of Listserve’s discussion on Post-Acceptance Rejection of a Manuscript, written by Michael Callaham, in http://www.wame.org/ethics-resources/post-acceptance-rejection-of-a-manuscript, accessed on 24 October 2009.
In http://publicationethics.org/files/u2/New_Code.pdf and http://publicationethics.org/files/u2/08_Editor_complaint.pdf, accessed on 22 June 2010.
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Acknowledgements
We would like to express our most sincere gratitude to all the journal editors who thoroughly analyzed the case described here and kindly share their views on the matters and suggested some actions. We also thank the two referees for their comments and pertinent suggestions.
Conflicts of interest
The corresponding author of the present article was one of the three complainant co-authors.
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Teixeira, A.A.C., da Costa, M.F. Who Rules the Ruler? On the Misconduct of Journal Editors. J Acad Ethics 8, 111–128 (2010). https://doi.org/10.1007/s10805-010-9107-y
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DOI: https://doi.org/10.1007/s10805-010-9107-y