Ahem.
The Journal of Sex & Marital Therapy has retracted a 2012 paper by a pair of authors in Spain who failed to obtain approval to adapt the model of sexual function they used in their study.
The article indicates that the work was based on previous research. But that declaration wasn’t enough to satisfy the creators of the model involved.
As the retraction notice states:
We, the Editor and Publisher of Journal of Sex & Martial Therapy, have removed the following manuscript that was posted online 9 February 2012:
Pablo Vallejo-Medina & Juan Carlos Sierra, “Adaptation, Equivalence, and Validation of the Changes in Sexual Functioning Questionnaire-Drugs in a Sample of Drug-Dependent Men”
DOI: 10.1080/0092623X.2011.642493. Journal of Sex & Martial Therapy.
The Editor and Publisher received notice of an allegation that the authors submitted the aforementioned paper to the journal without obtaining permission from Dr. Anita Clayton regarding the use and adaptation of the Changes in Sexual Functioning Questionnaire Short-Form (CSFQ-14) from the following co-authored work in Journal of Sex & Marital Therapy:
Adrienne Keller, Elizabeth L. McGarvey & Anita H. Clayton “Reliability and Construct Validity of the Changes in Sexual Functioning Questionnaire Short-Form (CSFQ-14)” Journal of Sex & Marital Therapy 32.1 (2006): 43–52 http://dx.doi.org/10.1080/00926230500232909
The Editor and Publisher find this allegation to be valid. These actions constitute a breach of warranties made by the authors with respect to originality. We note we received, peer-reviewed, accepted, and published this article in good faith based on these warranties, and censure these actions.
The retracted article will remain online to maintain the scholarly record, but it will be digitally watermarked on each page as RETRACTED.
The 2013 paper has only been cited once, according to Thomson Reuters Web of Science.
Clayton, who currently is interim chair of psychiatry and neurobehavioral sciences at the University of Virginia, and also sits on the editorial board of the JSMT, helped develop the CSFQ (both the original and shortened form). She said copyright infringement “clearly” occurred:
They did not request permission to use the scale, nor to modify the scale. I would not have granted permission for adaptation of the scale (I have never authorized modification of the scale). I was not aware of the article until I was asked to review another article in which this published article was referenced.
Researchers often modify the models, tests and other tools of their peers in order to conduct new studies — indeed, that’s essential to scientific progress — but doing so in this test could compromise its validity, Clayton explained:
The scale is copyrighted so that no changes can be made to it as the validation studies are specific to the copyrighted version. Any change to the scale would negatively impact the validation/integrity of the scale.
In 2009, the European Respiratory Journal ran an editorial titled “Validated questionnaires should not be modified,” about a similar case in which researchers tweaked an asthma scale. Money quotation:
It has been a long, hard struggle to get clinicians, academics, regulatory agencies and commercial companies to accept that subjective health status can be measured accurately and with precision. However, the struggle has been worth it because we now have a number of carefully developed and validated questionnaires and diaries that are proving invaluable in the assessment and management of patients’ health and which are used as primary outcomes in research studies. If rogue versions get into circulation, confidence in the usefulness of these questionnaires will evaporate very quickly. Therefore, it is beholden to each one of us to ensure that we use only authorised versions in our clinical practice and research. Validated questionnaires and diaries are copyrighted to ensure that they are not altered, translated or adapted for another medium without permission. International copyright laws and intellectual property rights must be upheld for the well-being of patients.
The key difference here, however, is that the researchers had obtained permission from the creator of the asthma scale to use her scale in their work. And, more importantly for our purposes, the journal issued a correction to “Predicting Worsening Asthma Control Following the Common Cold,” rather than a retraction, so that the findings could remain in the literature.
We contacted the managing editor of Journal of Sex & Martial Therapy to ask why they decided to retract the paper; she told us the journal and publisher had no further comment beyond the retraction notice.
We also tried to reach the authors, but haven’t heard back yet.
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The first line of the published retraction has a typographical error in stating the name of the journal: Journal of Sex & MARTIAL Therapy. I believe “martial” means “warlike. The retraction needs a correction.
So any research aimed at validating, improving, or (God forbid!) questioning the form has to get prior approval from the author of the form? This is what the fair use doctrine is supposed to be about.
The asthma case actually deals with an entirely different issue: is the underlying form “good enough” that the public health benefits of standardization are likely to outweigh the benefits of improvement or further validation? Contrary to the editorial. The public health issue has no connection with copyright law. Rather, it’s a professional judgment which should depend only on public health factors, may change in light of scientific developments, and won’t necessarily apply to any other case. Conflating the medical and legal issues is only going to confuse the law and degrade the medicine.
Arguably, that’s exactly what’s going on with the Changes in Sexual Function questionnaire. The critics of the study are using copyright to block asserted improvements to public health, while using public health concerns in an unrelated case to block the researchers’ “fair use” of the form. The IP and public health issues are analytically and factually distinct. If the owners of th CSF firm are trying to confuse these issues, I have to wonder if they could win either one on its own terms.