Annual Meeting Reports

Legal Issues for Editors and Publishers in Confronting Misconduct Allegations

Allegations of misconduct are common in publishing, and editors and publishers can expect to be faced with misconduct allegations at some point. Legal issues can vary widely, from allegations of copyright infringement for publishing allegedly plagiarized material to requests and subpoenas for reviewers or reviewers’ identities to whistleblower status of an editor or reviewer who identifies possible misconduct during the review of a manuscript. Issues can include accepting anonymous allegations and threats of suit for defamation. In this session, Debra Parrish reviewed the relevant regulations affecting misconduct allegations and provided pointers on how editors and publishers can minimize the risk of litigation associated with author and reviewer misconduct.

Parrish began by offering definitions of research misconduct that differ by country, institution, and profession and noted that the legal definitions can differ from the moral ones. It is important for editors and publishers to understand the basic legal principles surrounding misconduct allegations, including roles during a misconduct investigation, when to take action (and when not to), who can prompt action, and what action to take.

Probably the most common types of research-misconduct allegations faced by editors are those of copyright infringement, plagiarism, and image manipulation, Parrish said. Copyright involves a bundle of rights that are typically assigned to the journal, although some of them are now more commonly retained by the author or the author’s institution. There are no moral rights in US copyright law, and most copyright infringement cases involve a “fair use” defense. The Digital Millennium Copyright Act (DMCA), signed into law in October 1998, extends the reach of copyright while limiting the liability of providers of online services for copyright infringement by their users. DMCA provides a formal process for notifying organizations that host allegedly infringed content—the DMCA take-down notice; to avoid liability after a take-down notice is received, the publisher must remove the content from its site while waiting for a judge to decide the case. Damages for copyright infringement typically range from $750 to $30,000 and can be as high as $150,000 for intentional infringement.

Allegations of plagiarism, the wrongful appropriation of someone else’s idea as one’s original work, are also commonly brought to editors and publishers as research misconduct. In the United States, there is no such thing as self-plagiarism, said Parrish, and duplicate publication is allowed by law provided that it does not infringe on the copyright of a journal. In cases of alleged plagiarism, the relationship between the authors of the two publications is important inasmuch as it is implicit, although often misunderstood, that each researcher in a collaborative effort can use the results of the research independently of the others. Researchers and editors should keep in mind, however, that funders (the National Science Foundation in particular) hold authors to high standards of attribution and that plagiarism findings can result from incomplete attribution.

Parrish continued by discussing the roles of the various organizations involved in publication of scientific research in investigating research misconduct. Editors and publishers often ask whether they should investigate or participate in investigations of potential misconduct. In the United States, as in most other countries, research institutions are primarily responsible for investigating alleged misconduct by their faculty and staff. Investigations can begin at the request of one of the authors, the funding source, the editor- in-chief or managing editor of the journal, or the university. Parrish advised editors and publishers to leave investigation to the institution, although they may be asked to provide information related to the peer-review process for use in an investigation. Allowing institutions to investigate can mitigate suits for violation of due process or First Amendment rights, for defamation, for intentional infliction of emotional distress, and for tortious interference with a contracted business relationship.

During an investigation, it may be appropriate for the publisher to issue an expression of concern; when an investigation is complete, a correction or retraction is often necessary. Postcorrection action, such as banning a researcher from publishing in the journal, can also be taken. But as Parrish pointed out, in the case of misconduct investigations, the process is often the punishment.