Research Integrity and Copyright: A Proposal

The number one issue facing scholarly publishing today is research integrity. The crisis is associated with paper mills selling authorships to fabricated papers; reviewer cabals colluding with special issue guest editors; predatory journals, sans reviewers and editors, acting as auto-publish clubs; and papers rife with image and data manipulation. In response, publishers and editors are scrambling to retract thousands of corrupted papers, close complicit journals, and cease special issues. The publish-or-perish culture, often backed by cash incentives (now banned in China), can be blamed, as can publishers pushing papers through to capture open access fees. It all reflects how, in making this historic transition to online publishing on a global scale, scholarly publishing has yet to establish the additional checks and balances, policing and penalties, by which this new system can reassert its reliability and trustworthiness.

The scale of the problem has only become apparent due to a remarkable group of research fraud sleuths who see the need for a better means of dealing with it. Our efforts at the Public Knowledge Project involve developing for the industry a standardized article label for displaying adherence to scholarly standards. But at this point, more needs to be done.

Consider, for example, how one of the largest publishers, Wiley, concluded its investigation of the thousands of articles it had to retract and the journals it shuttered: “We have since sent sanction letters to several hundred [unnamed researchers serving as] Guest Editors notifying them that they can no longer take on an editorial role in our journals or publish with us in future.” That only leaves the sanctioned to publish everywhere else. Yet even where the names are known, a UK research integrity study found, the number of papers offering “evidence suggestive of falsification” was four times greater than the number of institutions investigating this evidence. But when universities go after faculty fraud – as with Harvard’s recent revoking of Francesca Gino’s tenure for falsifying research data – they face years of committee work, as well as the accused’s counter-suits.

Given how publishers and institutions are struggling to address this issue, it may well be time to consider whether legal measures could be introduced to address research integrity. To that end, I’d like to introduce a proposal for legislative reform, while asking, dear Slaw readers, for your (free) legal advice on its reasonableness, while perhaps provoking a better approach.

For a number of reasons, I believe that copyright reform may offer the best path for supporting research integrity. Scholarly publishing is in need of a digital-era update, which pretty well every other culture industry – be it music, video games, telecommunications – has had to protect their interests in this new era. These legislative changes have typically begun in one jurisdiction and through international trade agreements and local legislative initiatives, have spread internationally.

Research’s digital-era developments, both encouraging with open access and worrisome over integrity, set it apart from the other industries in ways that the Copyright Act has yet to recognize. It is time to make “research publications” a category of work, alongside architectural, choreographic, dramatic, literary, and musical works, among others. This will enable the law to support and protect research publications, distinguished by experts attesting to its adherence to the field’s standards for advancing knowledge.

Addressing both open access and research integrity offers an increase in efficiency and impact that might garner greater support, even as both issues represent a stakeholder consensus among authors, libraries, publishers, and funders on their value for advancing the public good. In the case of open access, and despite this consensus, we have yet to find in a timely manner a sustainable path at a fair price. This market failure, I have argued at some length, is best addressed by the typical legal remedy for such failures, namely, statutory licensing. Briefly, the law could require publishers of research publications to be fairly compensated by research institutions and funders for providing immediate open access to their publications.

I now propose adding a research integrity section to Copyright. It would state that to willfully deceive the public about a work’s research status for reasons of financial gain is to infringe on research’s statutory licensing. Those responsible for this deception, whether authors, editors, publishers, or others, would be subject to criminal prosecution and substantial fines, much as holds for copyright infringement generally. After all, such fraudulent claims can endanger human life and well-being, represent misuse of public funds, and undermine the research system that copyright is intended to advance.

This new publishing medium has shown itself to be in need of some minimal level of regulation on behalf of the public and the profession. Editors and authors would still be able to post research publication “corrections” and “retractions” that reflect honest mistakes and substantial reconsiderations of work conducted in good faith (without infringing on research’s statutory licensing).

At a time when the public’s trust in science is in need of a boost and autocratic regimes are feeding off this Age of Misinformation, I think it is time to explore bold legislative initiatives that can increase access to, while improving trust in, all that research has to offer. Your thoughts, please.