Journal Publishers Sued on Antitrust Grounds
Lucina Uddin, a professor of psychology at the University of California, Los Angeles, is the named plaintiff in an antitrust lawsuit against six publishers of academic journals: Elsevier, Wolters Kluwer, Wiley, Sage, Taylor and Francis Group, and Springer.
The lawsuit accuses the publishers of collusion in violation of Section 1 of the Sherman Act, stating that they “conspired to unlawfully appropriate billions of dollars that would have otherwise funded scientific research.”
The lawsuit, filed in federal district court in New York, can be read in its entirety here. The early paragraphs in which the publishers’ “scheme” is described are a good read:
The Publisher Defendants’ Scheme has three primary components. First, the Publisher Defendants agreed to not compensate scholars for their labor, in particular not to pay for their peer review services (the “Unpaid Peer Review Rule”). In other words, the Publisher Defendants agreed to fix the price of peer review services at zero. The Publisher Defendants also agreed to coerce scholars into providing their labor for nothing by expressly linking their unpaid labor with their ability to get their manuscripts published in the Publisher Defendants’ journals. In the “publish or perish” world of academia, the Publisher Defendants essentially agreed to hold the careers of scholars hostage so that the Publisher Defendants could force them to provide their valuable labor for free.
Second, the Publisher Defendants agreed not to compete with each other for manuscripts by requiring scholars to submit their manuscripts to only one journal at a time (the “Single Submission Rule”). The Single Submission Rule substantially reduces competition among the Publisher Defendants, substantially decreasing incentives to review manuscripts promptly and publish meritorious research quickly. The Single Submission Rule also robs scholars of negotiating leverage they otherwise would have had if more than one journal offered to publish their manuscripts. Thus, the Publisher Defendants know that if they offer to publish a manuscript, the submitting scholar has no viable alternative and the Publisher Defendant can then dictate the terms of publication.
Third, the Publisher Defendants agreed to prohibit scholars from freely sharing the scientific advancements described in submitted manuscripts while those manuscripts are under peer review, a process that often takes over a year (the “Gag Rule”). From the moment scholars submit manuscripts for publication, the Publisher Defendants behave as though the scientific advancements set forth in the manuscripts are their property, to be shared only if the Publisher Defendants grant permission. Moreover, when the Publisher Defendants select manuscripts for publication, the Publisher Defendants will often require scholars to sign away all intellectual property rights, in exchange for nothing. The manuscripts then become the actual property of the Publisher Defendants, and the Publisher Defendants charge the maximum the market will bear for access to that scientific knowledge.
The plaintiff is “seeks to recover treble damages, an injunction, and other relief.”
The philosophy professor who shared this news is a friend of an attorney at one of the law firms involved, and passes along that they are looking for more people in the humanities to join the suit. You get in touch with them via their site.
To me, this suit is welcome, and articulates very well a grave abuse at the core of the academic ecosystem. One further point that could have been mentioned is the inappropriateness of publicly-funded (academic) insights being hidden behind a paywall rather than freely available to the public, for which exemption can be purchased at a further fee sometimes in the thousands of US dollars.
This point was made on p.3 of the complaint
I second the bit about paying reviewers.
But do we really want journals to abolish the Single Submission Rule? The peer review system is already massively overburdened. I can’t imagine how much worse the problem would be if authors were allowed to submit their papers to every journal simultaneously. Aside from being technically impossible to manage, this would massively waste editors’ and reviewers’ time, since the vast majority of the papers they processed and reviewed would end up published elsewhere anyway.
I also think it’s wrong to assume that the Single Submission Rule eliminates competition between journals. Journals still compete to give their authors better feedback and a better review experience, as well as to publish the highest-quality research.
To be fair, the vast majority of papers journals process and review end up published elsewhere in the current system.
Does “collusion” here mean “the six publishing companies talked about these things with each other and explicitly agreed with each other to pay no money for peer review and to implement a one-submission-at-a-time rule?” Or, instead, does “collusion” here mean something more implicit (e.g., “each of these six publishing companies has — without talking with each other — adopted policies of not paying referees and of going one at a time with submissions, and this has in effect set up a system of implicit collusion that has benefited the publishing companies and hurt authors”). Just trying to figure what the charge is. If it’s explicit collusion, then yes, that would seem to me to be a real problem (though I am not sure how the law works). But if it’s just implicit collusion, then I don’t see the journals as doing anything wrong and would be hesitant to apply the term “collusion” to what they have done.
p. 11-12, 22-23, 25 of the complaint explain this part of the scheme. The publishers are all members of the International Association of Scientific, Technical, and Medical Publishers which requires members to agree to their “International Ethical Principles for Scholarly Publication.” These principles include the anticompetitive principles featured in the complaint.
Interesting. And it’s amazing that this association considers not paying reviewers to be an ethical principle!
There are some good reasons for not paying reviewers. There would be a greater chance for corruption (are editors allowed to contact their friends to take on a paid referee gig?). There would be increased pressure for individuals to take on reviews even when they cannot devote adequate time to them. I’m sure there are other issues that would come up. I’m not saying those are decisive, but I think it’s worth having an open discussion about the costs of paying referees even if those costs ultimately do not outweigh the benefits.
Just to weigh in on the other side of this discussion: these are costs that apply to virtually any decision to pay anyone for their labor. People take third jobs at McDonalds and end up making a bad burger or two out of exhaustion. That is not a reason to stop compensating McDonald’s workers.
FWIW, I actually value the idea of a community of scholars who don’t expect payment for mutually supportive structures from which we all benefit, but the problem is that we can’t pretend to aspire to that when publishing under these corporate entities. To participate in their game is to have already given up on the communal model.
Beautifully articulated. I hope for all of our sakes that she is successful.
Once again: at least if you are tenure-stream faculty, refereeing is paid work. It’s part of the service component of your job; you can and should list it in your annual self-report; it’s probably caught under a ‘service to the profession’ clause in your department’s conditions for tenure and promotion; you referee in your employer’s time and on your employer’s dime. Unpaid refereeing, financially speaking, is to a very large degree a gift made to journals not by individual academics but by their universities. (Things are more complicated for refereeing by grad students and academics not on the tenure stream, but I think (e.g.) most PhD programs would think that late-stage grad students doing small amounts of refereeing is fine and something they can do as part of their working week.)
It’s true that this part of your job is probably not closely monitored and probably does not contribute much to your employer’s assessment of you, so that in narrowly self-interested terms you should free-ride on it and concentrate on things like your own research or visible teaching assessments that contribute more to your prospects for promotion, pay rises, and lateral moves. But that’s also true about many other aspects of your job: external tenure assessments, letters of reference for students, providing timely feedback on submitted work, mentoring junior colleagues, making an effort to be inclusive at departmental social events, showing up to talks other than your own at conferences…
All of this without prejudice to the validity of the lawsuit, except that it does make me wonder about standing: I’m fairly confident that the plaintiff’s contract from UCLA implicitly or explicitly includes refereeing as part of her service obligation, and of course that applies to a fat fraction of the other class members. (Similarly for Author Processing Charges, also mentioned in the suit: in the vast majority of cases they are incurred for work done as part of an employment contract from a university, and so the charge is on the university in the first instance – if your employer doesn’t pay and so you decide to pay yourself, I’m not sure that’s the journals’ or the court’s problem.) Still, IANAL.
> Unpaid refereeing, financially speaking, is to a very large degree a gift made to journals not by individual academics but by their universities.
In return for what?
I doubt any explicit agreement of any sort was ever made of the sort you are suggesting. Or even without explicit agreement of any sort, do universities get to sell my labor to private companies? I’m struggling to even make sense of Wallace’s suggestion here.
I’m not suggesting there’s any explicit agreement. I’m just stating how the finances work: if you are tenure-stream, refereeing is part of what you are paid for, so you are not refereeing for free: your employer is paying for your refereeing, and in that sense it is your employer, not you, who is subsidizing the journal.
People don’t seem to accept this because your employer is (probably) not really checking up on what exactly you do with the service component of your work, and it’s not really in your narrow self interest to do it rather than focussing on other parts of your job that are more directly recognized. But lots of aspects of your job are like that.
Put another way: I plan to spend a chunk of tomorrow refereeing. If instead I planned to spend it playing video games, I’m taking the day off. As it is, I’m not: refereeing is part of my job. I would be embarrassed to tell my chair that I spent a weekday during term playing video games. I’m not at all embarrassed telling him that I’m refereeing.
I (continue to) disagree with you on this David. There are things that my employer pays me to do (in order of importance):
Your argument is that refereeing is something that I can put down as service therefore it is something that my employer pays me to do. The problem, in my view, of an inference like this is that the university is not contractually obligated to pay me for referring articles.
If I stop teaching, I will be sanctioned (excellent evidence that I am paid to teach). If I stop doing department and university service, I will be sanctioned (evidence that my employer pays me to do this). If I stop producing research I will, in a manner of speaking, be sanctioned – I will fail to receive merit bonuses (I am tenured). This too is evidence that my employer, at the very least, expects me to produce research (because they reward me for doing so). If I stop reviewing articles….nothing happens. My employer, quite literally, does not care.
On a similar note, if I teach extra classes my university gives me more money. If I take on additional service obligations (like being department chair, running a campus center or initiative, etc) my university rewards me (sometimes with literal money and sometimes with things like course releases). If I review 100 articles (or 1,000 articles), my university could not care less. It is not something I am paid to do.
Universities would certainly love it if we all gave 300% (100% each for teaching, research, and service) but we are not under any contractual obligations to do this. At best (and most realistically) we have moral obligations to referee articles but, as this lawsuit suggests, that moral obligation can and should be tempered by the ethics of performing it for free to a for-profit corporate body.
I can’t speak to how things work in your university (not least because you’re anonymous!) but at Pitt,
I would just like to note that whichever you is right this will still not apply to grad students or to many of those on temporary contracts, who are the ones doing a lot of the reviewing.
David made an explicit note of that above.
Some universities do offer course releases for taking on editorial responsibilities. My current and previous employers have both explicitly counted refereeing towards service. If e.g. passing your third year review, getting tenure, getting a merit raise, and so on, count as non-monetary compensation and refereeing contributes to the basis on which it is allocated, then David’s point stands.
It may still be true that some refereeing ought to be paid. We also receive honoraria for invited talks, though giving talks is part of our job. I’m agnostic about the circumstances in which one ought to be receiving extra compensation for duties that fall under one’s job description. But the fact that one does receive compensation for some such activities (e.g. invited talks) does not entail that they are not work one is already compensated for as part of one’s job.
Some universities do offer course releases for taking on editorial responsibilities. My current and previous employers have both explicitly counted refereeing towards service. If e.g. passing your third year review, getting tenure, getting a merit raise, and so on, count as non-monetary compensation and refereeing contributes to the basis on which it is allocated, then David’s point stands.
I think this is where, perhaps, David and I (and you) may be disagreeing. I’m distinguishing between two things:
I am not paid to referee articles in the first sense but I don’t dispute that doing a lot of referring makes me an excellent employee. Things I am paid to do are those things that, were I to stop doing them, my employer would sanction me for. Service, as anyone who’s done this job knows, can easily take up one’s entire life. Saying no to additional service is not an abrogation of your job duties. You may be required (i.e., paid) to engage in service but you are not required to spend your service time doing refereeing (and would get in trouble, I bet, if you decide that the only service you’ll do for your department and university will be refereeing for journals).
In connection with your job as a philosophy instructor, nobody is paid to go to referee. If you were to stop refereeing but still do everything else you wouldn’t be sanctioned. If you were to stop teaching your classes you’d almost certainly be sanctioned. You’re paid to do the latter, not the former. This is why I’m saying that refereeing is a moral duty, I owe it to the profession. I do not, under any circumstances, owe my university any refereeing service.
I think we’re talking past each other, but: I don’t think it makes sense to say that the only things I’m paid to do are the things my employer would sanction me if I didn’t do them. Suppose I decide to do a minimal job on letters of reference for graduate students, don’t get feedback to graduate students in a timely fashion, systematically say no to requests to be on university tenure committees, and skip conference talks by junior people so I can play tourist. I can plausibly do all of that without my employer sanctioning me. But if, conversely, I work hard to write students the best letters I can, do a diligent and prompt job commenting on student work, pull my weight on tenure committees, and play the good citizen in conferences, I don’t think it would make sense to say it was unpaid work.
As a (somewhat) separate point, if you are in a merit-pay system, things you get sanctioned for not doing don’t coincide with things you get rewarded for doing, and the latter as well as the former seem to count as things you are paid for (your own mention of merit raises fits this pattern). I noted above that my refereeing was mentioned in my annual report letter; I got a merit pay rise in that same letter. I seriously doubt refereeing was the main reason that happened but as a small contribution to the general case in my self-report that I was a good academic citizen, I don’t think it hurt!
Would you consider volunteering to serve on yet another (say, a sixth) committee for the academic year paid or unpaid work? I doubt anyone would be sanctioned for not saying yes to yet another request to join a committee. Yet some people appear to enjoy spending as much time as they can doing that kind of service work. Because time is scarce I presume it’s time they cannot spend doing service to the profession through refereeing. So they’re making a choice in how to allocate their service work beyond the minimum committee work that’s required of them (however many committees per year that is). Likewise David and I are choosing to allocate some (not all) of our service work to refereeing. It’s no more unpaid work than further committee work would be. Neither are supererogatory; they are different ways to do that part of your job. I see service as akin to imperfect duties: you have much discretion in how you fulfill your general service obligation. Maybe satisfactory teaching and publishing x articles per year are more akin to perfect duties—there is less latitude in whether or not you fulfill your obligations there. And maybe there is an asymmetry in that doing zero committee work might be sanctioned but not doing zero refereeing. I don’t think that’s quite enough reason to consider the latter unpaid work though.
David, I wonder if you see an analogy between your view on pay for refereeing and NIL contracts or similar for student-athletes on scholarship. I don’t think I share your view on paid refereeing but my question here isn’t a critique, just something I’m curious about.
American college sport is a closed book to me, sorry!
Gotcha! Thanks, anyway.