Academic publishers face antitrust lawsuit

Six scholarly publishers have been hit with an antitrust lawsuit for allegedly appropriating billions of dollars in public funds that the plaintiffs argue would otherwise have been used to carry out scientific research.

The complaint was filed in the Eastern District of New York by plaintiffs that include a researcher who says they conducted peer review for all six companies: Elsevier, Springer Nature, Taylor & Francis, Sage Publications, Wiley, and Wolters Kluwer.

The complaint alleges that the publishers engaged in a scheme that, in addition to diverting taxpayer money, has prevented scholars from freely exchanging information and created a peer-review crisis. “The Scheme has held back science, delaying advances across all fields of research,” it says.

The suit lays out three main claims. One is that the six publishers colluded to fix the price of peer review at zero by linking researchers’ unpaid labor to their ability to get manuscripts published.

Second, it alleges the six agreed not to compete with one another by requiring that researchers submit papers to one journal at a time. Finally, it says the publishers bar researchers from freely sharing the research reported in their submitted papers while they are under review.

Herbert Hovenkamp, a professor of legal studies and business ethics at the University of Pennsylvania, says the case may be the first that alleges a cartel among scholarly journals. “It’s a suit that presents some risk for the publishers of the journals,”he says.

Hovenkamp says the claim that publishers agreed to coerce reviewers to work without compensation is the most serious one. Though it’s legal for a journal or publisher to decide in isolation not to pay peer reviewers, multiple publishers agreeing with one another not to compensate referees is not allowed. “The question is not how much they will pay,” Hovenkamp says, but “whether it’s legal for them to agree with each other not to pay.”

Requiring authors to submit papers to one journal at a time may be justifiable, as it can be seen as a reasonable way to make submissions manageable, Hovenkamp says. “You have to show something is anticompetitive, and the fact is that multiple submissions can be extremely wasteful.”

Hovenkamp sees a stronger argument in the complaint that researchers are not allowed to share research elsewhere while it’s being considered for publication at one journal. “That sounds suspicious and perhaps illegal,” he says. “It’s possible that the journals can come up with a good justification for it, but I don’t know what it would be.”

Dorothy Bishop, a developmental neuropsychologist who recently retired from the University of Oxford and now spends her days as a research integrity sleuth, writes on her blog that she doesn’t think the case challenges publishers on sufficient grounds.

“It’s not true that there is an express link between peer review and publishing papers in the pre-eminent journals,” Bishop writes. “In fact, many journal editors complain that some of the most prolific authors never do any peer review.”

Bishop also notes that most journals allow researchers to post their papers on preprint servers, which undermines the argument that publishers prohibit academics from disseminating research while it is being considered for publication.

Lisa Janicke Hinchliffe, an information scientist at the University of Illinois Urbana-Champaign who monitors scholarly publishing, questions whether everyone who has done peer review has been harmed in the same way.

“It is very easy to find people who say that they are paid for peer reviewing because, as a tenure-line faculty member, it is part of the service expectations for their job,” Hinchliffe says in an email. “Similarly, has every scholar who submitted a manuscript to only one journal at a time been harmed?”

Hovenkamp suspects that the first course of action from the defendants will be a motion to dismiss the lawsuit. “The important thing about a motion to dismiss is that the only thing you look at in a motion to dismiss is the language of the complaint itself,” he says. “That could happen in less than a year.”

If that motion is denied, Hovenkamp says, the case then goes into discovery, where records are checked and experts are brought in. That process could take significantly longer, he says.