Alleged unauthorized use of data and possible dual publication

Case number: 
09-20

Case text (Anonymised)

During review of a manuscript submitted to our journal, a dispute arose over some of the data used in the database that was described in the submitted paper.

The authors listed several preferred reviewers and also one non-preferred reviewer (without giving reasons). The journal’s submission site states that the editors will consider the authors’ preferred suggestions but are under no obligation to use any or all of them and that the editors reserve the right to approach non-preferred referees. Authors are asked to outline in their comments to the editor any particular reasons for requesting exclusion.

The paper was initially positively reviewed by two referees, one of them a preferred referee, and minor revision was requested. Neither of the initial referees responded to the invitation to review the revision (they neither declined, nor agreed, just did not respond) and as the senior author had already published with virtually all important scientists in this small field, the associate editor decided to invite the non-preferred reviewer. The non-preferred reviewer and one new reviewer agreed to review.

Shortly after accepting, the non-preferred reviewer emailed the editorial office asking whether it was journal policy to publish a reference to a database without any scientific study based on these data (the journal answered yes, citing a previously published database description) and stating “I discovered by examining this database that the senior author has used my data without permission. This applies to hundreds of measurements in country 1 and in the mountains, but also to data from country 2”.

The authors state on the database website that the database contains published data and in the manuscript that the “measurements in the database have been collected over the last 20 years from various sites around the world (references given) and are included with permission from the collectors”. The journal informed the non-preferred reviewer that, from what the authors were stating, all data seemed to be in the public domain, but advised him to put his concerns into his review or contact the authors directly, if the reviewer preferred.

By the time the reviewer received this reply he had already submitted his review and informed the journal that he also sent his full review to the senior author. The reviewer also pointed out in an email to the editorial office that the measurements published in one of the cited studies (of which the referee was the senior author) were not published in the form as they appear now in the database, and then accused the senior author of having used information which he collected as a member of the reviewer’s research group a long time ago, and publishing it without the reviewer’s permission. The reviewer thought that the reference to the paper was not sufficient and also stated that the conditions with the mountain data were more serious.

In the review, the referee pointed out three problems:
(1) unethical behaviour on the part of the senior author. The reviewer stated that he could not remember having given permission to use the data, but had specifically asked the senior author not to use the mountain data for anything until the reviewer had finished his analysis. He included the original email in the review.
(2) potential dual publication. The reviewer stated that because no analysis of the data was presented in the paper, a simple report on the existence of the database was not suitable for publication in a journal and went on to point out that a first version of this database was already published (as cited on the database website, but not in the paper) as a preprint article. As a comparison of the two manuscripts did not reveal any obvious differences in content, the reviewer questioned whether this constituted dual publication.
(3) questions over the use of a particular method. The reviewer called the use of this method “scientifically unacceptable”, stating that the problems with this method have been published and concluding that it was unacceptable for the senior author to ignore these arguments (this was not mentioned by any of the other reviewers).

Checking the date of the above mentioned email and the publication date of the preprint article, the journal realised that the reviewer emailed the senior author shortly after the document was posted online. The dispute had thus been going on for over a year by the time the referee was invited to review, but the reviewer had not declared a conflict of interest.

The associate editor, having read both reviews (the second being positive), recommended rejecting the manuscript and inviting a resubmission once the authors either were able to present the permit obtained from the non-preferred reviewer or removed all unpublished data for which no data were available.

In the meantime (and before any action was taken), the senior author, prompted by the reviewer’s email to him, emailed the managing editor and the associate editor, informing them that the non-preferred reviewer used to be the senior author’s PhD supervisor. The senior author rejected as incorrect any claims over the inappropriateness of the method and the statement that the reviewer had not given permission to use what the referee claimed were his data. As the review implies several forms of unethical behaviour on the senior author’s part, he felt the need to clarify.

(1) the criticised method has been used in top tier journals such as Science, Nature and PNAS and has therefore been through rigorous quality control. Since the reviewer’s evaluation of the method did not contain any concrete arguments, the senior author assumed that the reviewer was referring to a polemic about the method by another author, published in the same journal in which the senior author countered these arguments. The method continues to be the most widely used, cited over 90 times (the associate editor points out that it was cited mainly by the senior author’s main group, but that none of the other reviewers have criticised the method). The senior author further points out that this method is not the only one used in the database.

(2) re the inappropriate use of data from country 1, the senior author assures the journal that the referee had been asked and had given permission (an email was attached), but that if the referee wanted to retract the permission, the authors would remove the data in question. Re the data from the mountains and the email sent by the reviewer, the senior author claimed that the email had been taken out of context. The senior author had indeed asked the reviewer about the possibility to perform a separate analysis on the mountain data. According to the senior author it was this request about the separate analysis that the reviewer declined and the request had not referred to making publicly available the data that had already been published in one of the references.

(3) re dual publication, the senior author stated that a beta version of the manuscript, with a completely different code and user interface and only a very reduced set of data, was posted on a preprint server, not a regular journal publication (the associate editor saw no major changes in the number of data entries and that both discuss the database in a similar way, but thought that the submitted manuscript was more detailed than the earlier (preprint) article. Figures are not identical, but basically follow the same scheme. The associate editor left it up to the editor whether he considered a full-length paper that builds upon something that has been published on a preprint server as sufficiently novel).

The senior author finally adds that because of previous similar experiences, the authors had listed the reviewer as non-preferred.

The corresponding author emailed the editorial office offering to remove from the database any data that have been collected with the reviewer’s participation but emphasised that by doing so, the authors do not acknowledge any form of wrongdoing on their part, but seek to make it easier for the journal to make a decision.

After discussions between the editors, the editorial office and the publisher, the decision was to reject the manuscript but to invite resubmission. The letter pointed out (a) the disputed use of data in the database; (b) the question of dual publication; and (c) the scientific criticisms expressed by both referees. It of course included both reviews in full.

Advice: 

The editor confirmed that the journal did not have a policy on whether they will accept material that has already been posted on a preprint server. Preprint servers are not peer-reviewed, so some journals will accept material that has already been posted, but all such prior presentations should be disclosed to the editor in the covering letter. All agreed that the editor should not get involved in an author dispute. The editor could suggest that the authors find an independent adjudicator, that both sides find acceptable, if the authors cannot come to an agreement among themselves. It was suggested that the editor could go to the author’s institution and ask them to adjudicate. The editor should also clarify their policy on preprint servers in the journal’s instructions to authors.

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