Thursday, December 7, 2017

OMICS ruling may govern all journal publishing

In last week's IPA I began to discuss the possibility that the OMICS ruling in Federal Court might apply to all journals. Below are some relevant excerpts for possible discussion.

I do not know much about journal publishing but I know a lot about federal regulation, since it has been my field for over 40 years. This may be the beginning of a complex situation for the community. It certainly bears watching.


Inside Public Access
December 2, 2017

OMICS ruling may govern all journal publishing

By David Wojick, Ph.D.

Synopsis: The recent Federal Court Order in the OMICS case targets new wave journals, but it probably applies to all journals (and conferences) and the compliance issues are far from simple.

The US Government has taken another step toward regulating scholarly journals. We recently had NIH's pointed recommendations regarding where its grantees should not publish. Now the Nevada District Court has issued an injunction against OMICS that lays out numerous rules that journals must follow.

The OMICS case was brought by the Federal Trade Commission and they view this injunction as a precedent for all journals. A Retraction Watch article cites the FTC attorney saying "This is certainly our message to the academic world that, we are monitoring and on the lookout for predatory publishers." Anyone who thinks this is just about OMICS does not grasp the scope of the situation.

That the FTC actually uses the term "predatory publishers" is unfortunate, but indicative of US policy. What role the federal Public Access Program will play in all of this remains to be seen. They clearly have the lead at NIH, because they are the POC for the directive.

The FTC may well now issue its own rules, especially if they win the case, citing the Court order as authority. Even without the FTC, this Order establishes federal case law to some degree. The three branches of government each make rules. Congress passes laws, the Agencies promulgate regulations and the Courts make case law.

Mind you this is just a preliminary injunction, so the precedent may be weak. But the discussion section of the Order sounds like the Court is likely to rule against OMICS. Note too that the discussion section is itself an important part of the rule making. It needs to be read with care.

The journal industry should carefully consider the relatively detailed rules laid out in the Order. These rules primarily apply to advertising, especially (1) email calls for papers and (2) what is on the journal website. But the business practices are also deeply affected, because these requirements go well beyond just what is said, to what is actually done.

As with many disclosure regulations, you have to say what you do and do what you say. Plus there are rules about what you can and cannot say, and what you must say.

For example, the Court is working toward defining the term "peer review" to mean what the rich journals do. This is lengthy review with detailed reviewer comments and author revisions, which is very expensive. The rule seems to be that a journal cannot say that it does peer review unless it meets this standard.

In fact the discussion seems to suggest that multiple rounds of review are required, which many journals probably do not do. This is a regulatory definition issue that will require a lot of articulation to resolve.

The regulation of scholarly journals is something that the entire industry should be concerned about. Thinking that it is just about some minor predatory journal problem would be a great mistake. The entire industry is now in the Federal cross-hairs.

Any journal can be out of compliance. The discussion section of the Order makes it clear that intent to deceive is irrelevant. All that matters is what is actually done.

So, for example, if a prestigious gold OA journal sends out a call for papers that does not properly disclose its APCs then it will probably be out of compliance. This raises the issue of what counts as proper disclosure? It may be a special problem for journals that charge different APCs, for different authors or institutions or for other reasons. There is also the question of the extent to which these rules apply to APCs in hybrid journals? What about fees other than APCs, including those charged by subscription journals?

Some years ago I did a lot of work with new consumer disclosure regulations laid on the banking industry. These issues can get very hairy. Disclosure of journal (and conference) fees could be a complex beast.

Proper disclosure of fees is just one of many complex issue areas raised by this federal Order. All publishers and journals need to be concerned.

There are also a number of rules governing conferences. These apply more to scholarly societies than to commercial publishers. The central rule looks to be that advertised speakers must show up. Of course this is not always possible, so the question is how to handle that possibility? This too could be a hairy compliance issue.

End of excerpts.

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