Class action threatens to upend academic publishing

If successful, a class action lawsuit brought against the six largest academic publishers, which together account for 53% of academic publishing, and the trade association they formed – International Association of Scientific, Technical and Medical Publishers (STM) – will upend academic publishing.

The action has been filed in the name of Dr Lucina Uddin, a University of California at Los Angeles neuroscience professor, who has more than 175 academic articles to her credit and has peer reviewed for journals owned by each of the six publishers.

Uddin (the Scholar Plaintiff) alleges that the publishers constitute what amounts to a “cartel†that violated the Sherman Antitrust Act (1890) by “conspiring to unlawfully appropriate billions of dollars that would have otherwise funded scientific researchâ€.

The case was brought by the firms of Lieff Cabraser, Heimann and Bernstein, LLP (based in both San Francisco and New York City) and the New York City-based Justice Catalyst Law, a firm with extensive antitrust and consumer class action experience.

The Publisher Defendants (PDs) include Elsevier, BV; Wolters Kluwer NV (WK); John Wiley & Sons; Sage Publications; Taylor & Francis Group, Ltd; Springer Nature AG & Co KGaA; STM and other publishers to be named later.

University World News reached out to the publishers but as of the time of this writing, several publishers had declined to comment on the case.

Wiley responded with an email stating: “We are aware of the lawsuit filed against us and other publishers, and, while we cannot comment on the specifics of the claims at this time, we believe they are without merit. We remain dedicated to supporting the scholarly community by delivering excellence in all aspects of scholarly publishing.â€

Non-payment of reviewers

The lawsuit alleges that the PDs created a three-part, mutually reinforcing scheme to “increase profits and maintain market dominanceâ€. The first part of this scheme is the agreement “not to pay [peer] reviewersâ€.

As evidence of their collusion, the filing cites STM’s Principle 1: “Peer reviewing is uncompensated or ‘volunteer work’.â€

Additionally, the filing cites policy statements from each publisher. For example, according to Wiley: “Reviewers are volunteers and have given up their own time to evaluate your paper in order to contribute to the research community. Reviewers very rarely receive formal compensation beyond recognition from the editors of the effort they have expended.â€

WK goes further and tells young reviewers how thankful they should be to have been accepted into the fold: “Being invited as a peer reviewer by a journal amounts to being accepted as an expert in the field. It is a kind of recognition in itself to be known as a peer reviewer, and this can be a stepping stone for novice researchers.â€

The filing does not attach a dollar amount to the benefits accrued to the publishers. Rather, it asks the jury to determine how much the reviewers (that is, the class) would have been paid had not the PDs fixed payment at “zero†dollars – and then to treble this amount to be paid to members of the class.

The dollar figures cited for the value of peer reviewers’ work are eye-popping. The filing cites a 2021 study titled “A Billion-Dollar Donation: Estimating the Cost of Researchers’ Time Spent on Peer Review†that estimated that in 2020, peer reviewers performed the equivalent of 15,000 years of peer review work worth at least US$1.5 billion.

Additionally, the court has been presented with STM’s 2012 report that estimated that, globally, peer reviewers provided, gratis, £1.9 billion (US$2.5 billion) annually or about £1,200 per paper.

By way of comparison, the filing notes: “In 2023, Elsevier alone generated US$3.8 billion in revenue from its peer-reviewed journals, with an operating profit margin of 38 percent. This profit margin exceeded Apple’s 30% and Google’s 25%â€.

“Accordingly,†said Benjamin D Elga, counsel for the plaintiff at Justice Catalyst Law, “the first thing the case seeks is that the PDs stop agreeing not to pay scholars for their labour – which ends up enriching the publishers. The case is alleging that the natural thing to do is to pay scholars for their work.

“We believe that when the agreement among the journals not to pay is enjoined, at least some of the journals or maybe all of them will pay reviewers and maybe even authors.â€

Anti-competition

The second major part of the scheme is the so-called “Single Submission Ruleâ€, which grants the PDs enormous power over scholars.

The STM’s principles that “submitting the same manuscript to more than one journal concurrently … constitutes unethical behaviour and is unacceptable†is echoed by the PDs’ own policies. “Authors should ensure that . . . their work has . . . been submitted only to the journal,†notes the filing, quoting SAGE Publications’ “Ethics and Responsibility†policy.

For its part, Taylor & Francis’ “Misconduct … Editorial Policiesâ€, state: “Authors are required to declare upon submission that the manuscript is not under consideration elsewhere, and as such the detection of a duplicate submission or publication is typically considered to be a deliberate act.â€

Elga noted: “It’s one thing for a publication on its own to have a single submission rule†(The New York Times famously has one for article and op-ed submissions.) “The problem arises when every publisher has agreed to have one. What we see is a loss of the author-scholar’s bargaining power,†he explained.

This rule would, Elga said, seem to run counter to the decision of the Supreme Court of the United States in the 1978 case, National Society of Professional Engineers v the United States.

In this case, the court found that the rule against competitive bidding, under which an individual could negotiate with only one engineer at a time, violated the Sherman Antitrust Act.

Delays to research findings

The filing refers to the third major part of the scheme as the “Gag Rule†under which authors are enjoined from sharing their research without the permission of their publisher until it appears in print.

The filing notes, for example, that prior to publication: “Springer enforces a six-month embargo for all of its subscription journals. During this period, scholars are prohibited from publicly releasing their article. Springer also prohibits scholars from releasing their accepted manuscripts under a Creative Commons licence.â€

According to Elga, the Gag Rule “has perverse consequences for the advancement of science. It slows up the transmittal of scientific information – and means that scientific findings can, essentially, be on the shelf for yearsâ€.

The filing addresses this by noting: “During the COVID-19 pandemic, the Publisher Defendants relaxed the Gag Rule to help develop a vaccine faster. The Publisher Defendants’ decision to create a limited exception worked: scientists developed a vaccine for COVID-19 in less than a year – three years faster than the next-fastest developed vaccine ever created.

“The COVID-19 vaccine’s quick development was due in no small part to the Publisher Defendants’ suspension of the Gag Rule, allowing scientists to freely share their discoveries and knowledge with each other.

The Publisher Defendants’ relaxation of the Gag Rule during the COVID-19 pandemic demonstrates that the Rule impedes the pursuit of critical cures for other serious medical ailments like cancer, Alzheimer’s, and HIVâ€.

The costs of oligopoly

Sune D Müller, professor of informatics at the University of Oslo and author of “The ‘hijacking’ of the ‘Scandinavian Journal of Information Systems’: Implications for the information systems communityâ€, characterises the scheme as being akin to a spider’s web or an oligopoly in which the PDs not only control the labour market, but distort it, especially for younger scholars.

“They are desperate to publish because their careers depend on it. If they don’t publish fast enough, they get kicked out of the gate, so to speak.

“Because of the way the system works, it takes two to three years to post a paper. This can be too long for a young academic.

“This creates an incentive for them to seek an alternative, faster way to publish and this can be in journals that are predatory or of much lesser quality,†he said.

Such publishing, Müller continued, can lead to the ‘McDonalds-ification’ of research.

“By this I mean,†he said, “taking on research projects that are less demanding, that are easy to consume, easy to produce and can be published faster in the journals that publish quickly.â€

Towards the end of our discussion, Müller sounded the same note as Elga about the danger to scholarship of the monopolistic system.

“I hope the publishers will be forced to change their practices. This means that we will be able to submit our papers to more than one pisher at a time,†he said.

“The introduction of competition will incentivise publishers to make sure that the turnaround time is as short as possible. To do this, journals will have to pay reviewers for their services,†he added.