Major publisher threatened to sue author who didn’t realize he owed open access fees

Around two years ago, when mathematics researcher Jean Ecalle submitted a paper to Acta Mathematica Vietnamica, he saw that he had the option of making the paper open access. So he checked a box on the submission form — which included a mention of the fees that he apparently missed — and didn’t think anything of it.

The paper “Eupolars and their Bialternality Grid” appeared online in October, 2015

So Ecalle was quite surprised when, sometime later, he received an email from a representative of the publisher saying he owed 2,640 Euros. He responded in January 2016, guessing what the fees might stem from:

All you did by way of “editing” was to substitute the US spelling for the UK spelling in my paper, and make a few more insignificant changes of this nature. That certainly doesn’t warrant a bill of 2.640 Euros!

Let me repeat: I didn’t order anything from you; didn’t receive anything; and won’t pay anything.

In September, the publisher explained that by opting for “open access,” he was automatically billed for the publishing costs — 2,200 euros, along with any additional fees. But Ecalle didn’t think that the completed form had specified that choosing “open access” meant he would owe fees, so he had no idea he would be expected to provide such a huge sum. But that didn’t matter to the representative of Springer Nature, who told him:

Please be informed that open choice cancellation is not possible after publication. Your article is freely available to everyone, everywhere at SpringerLink and no subscription is required to read and cite it.

Ecalle responded, saying there had been a misunderstanding, and asked that the publisher take his article off open access, but Springer Nature declined. When Ecalle, based at the University of Paris – Sud, did not pay, on December 22, 2016, a representative from the collections department at Springer Nature threatened him with legal action:

Please note that we will give our claim to the legal department and debt collection agency if we should not receive your payment in time. You should be aware that there are further costs involved, such as interest fees and administrative fees for the legal action. In order to avoid this you should remit the outstanding amount immediately.

Earlier this week, Benoit Kloeckner, another mathematics researcher at the University of Paris – East, posted an article about Ecalle’s experience on Google Plus. Springer Nature responded to that post, sharing a screenshot of the Springer Open rights transfer and order form from the time when Ecalle submitted his paper (click to enlarge):

Yesterday, Ecalle told us the episode has, thankfully, been sorted out:

Be that as it may, I am glad to say that, thanks to Benoit Kloekner’s intervention, the matter has just been resolved. This very morning, Springer sent me a conciliatory email, backing off from their threats, and informing me that they had reformatted their online ordering forms in such a way as to preclude similar equivocations in the future.

As of today, the paper is still marked “open access.”

Springer Nature tells Retraction Watch that they do not comment on individual cases but that they had been in touch with Ecalle to discuss his concerns. A representative said:

We’ve taken care to ensure that the Article Processing Charge is clearly marked on the form that an author submits after acceptance of the article. This is to make sure that the authors are clear on what they are committing to.

Our general policy is that after issuing our original invoice, we wait a designated period of time for the invoice to be paid. If the invoice is not paid, we send out reminders. At a certain point of non-payment, we indicate that the case will be handed over to a collecting agency. This note as well as the involvement of collecting agencies is common business practice.

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12 thoughts on “Major publisher threatened to sue author who didn’t realize he owed open access fees”

  1. The (generally) outrageous fees are hidden or simply way down in the pages from their site. The main thing that Springer has done is to buy BioMedCentral and probably other outlets, not pay the editors very much, get free reviews from scientists and charge other scientists very high fees for, as Ecalle say, hardly any work — the actual publication runs on software with little human intervention.

    The solution: scientists should refuse to do reviews for any journal that is not open access or charges author fees of more than USD 500. Otherwise, we just let the publishers drain money from science and from libraries, both under-funded. The real alternative is scientist cooperatives.

    1. I could not agree more. In the past paper prints no doubt had charges associated with them (paper, ink, distribution). On-line publication costs are presumably so low as to be non-existent (hence the rise of the predatory journals). If anything publishing in open access should cost less – not more.
      And don’t get me started about journals charging >£20 for articles more than a decade old. Grrrr!

    2. the actual publication runs on software with little human intervention

      There was certainly no skilled effort put into typesetting the mathematics here: Even by page 2, it’s clear that “bial” and “Bial” are set as though the letters were individual variables (i.e., just $bial$ and $Bial$) rather than correctly as \textit. The obvious use of \left and \right for delimiters is completely unprofessional (eqs. [49] and [51] are glaring examples), etc.

      It’s not an “enterprise solution,” people.

  2. Please be informed that open choice cancellation is not possible after publication.

    The great irony here is that it’s not always provided after publication. I gave up on contacting publishers to point out that papers prominently branded with open-access CC licenses and “© The Authors” were nonetheless paywalled after one particularly stupid E-mail exchange (albeit with Elsevier). Just this week, I ran into an accepted author manuscript that was paywalled. The only problem was that it was U.S. government (CDC) work product and therefore in the public domain, which was even stated on the added cover sheet.

  3. CDC and other government authors have no copyright but that doesn’t mean that their publications can’t be paywalled by a journal. The authors can post a copy of their article on PMC but the published article itself is not necessarily open access.

    1. CDC and other government authors have no copyright but that doesn’t mean that their publications can’t be paywalled by a journal.

      Point taken. I was thinking of the society journals that I’ve worked for, which flagged access control based on a property associated with the copyright slug. That’s still no excuse for failing to provide bought-and-paid-for OA and putting ignoramuses in charge of responding to complaints, though.

  4. It looks to me like the charges were clearly spelled out, right next to the check-box that Ecalle had to click. In this case, I think he’s at fault for not reading what he agreed to.

  5. … and, in spite of Ecalle’s claim that he “didn’t order anything from you; didn’t receive anything; and won’t pay anything”… he DID order something from the publisher.

    As high as the fees seem to be, he ordered the “publishing” of his paper on their Web site and the provision of that paper to others.

  6. In so far as Ecalle’s claim was legal, it was on a technicality. The legality is not the question. Publishers have set up a system which is fundamentally adversarial, legally ripping off scientists and public because they can get a way with it. We should try to stop it.

    1. Please be informed that open choice cancellation is not possible after publication.

      That’s correct. You can’t retract a license. All they can do is waive the fees. Keeping this simple fact in mind I’m actually surprised that some publishers don’t wait until they have received the payment before they make the publication open-access.

      Not expecting that such an open access option would cost money seems a bit naive to me.

  7. Given that signing up for open access apparently had that “I acknowledge that….” checkbox (not just a clause that might go unread), I suspect the publisher had a strong legal case. It backed down because:

    1. Collecting the money would cost more than its claim, and the court might not award legal fees. (I’m not sure about the law on that.)

    2. Bad publicity when their ‘shut up and pay’ effort failed.

    That said, 2200 Euros is a lot for simply making the article freely available. There are websites that offer similar services for free. As others have noted, the system is broken and needs fixing.
    This problem pops up almost everywhere. People who want to do X (scientific research), often don’t want to do Y (run a complex website). Those who will do Y for a fee can often make out quite well, particularly if they can limit competition.

    You see something similar in medicine where the typical physician wants to cure sick people not engage in tiresome political fights in hospitals or government. As as result, physicians end up laboring under restrictions created by bureaucrats who love politics. Mandates for electronic medical records (EMR) are a good illustration of that. My doctor hates the time he now has to spend at a keyboard. Nurses, with even less bargaining power, often end up being treated worse than the physicians. I wrote a book, Senior Nurse Mentor, about their woes and offering a solution that might, just might, be adaptable to science research. Every profession needs advocates.

    Technology poses as many dangers as advantages. For several years I’ve been warning physicians and nurses that the apps being created by Apple, IBM and others are not well-suited for making their work flow more smoothly and efficiently. The features those apps have are being driven by those who will buy them—hospital administrators. They’re designed to allow administrators to more closely monitor and micromanage hospital staff. All tasks are to be channeled through smartphone and tablet apps, imposing yet more demands on the time physicians and nurses. They don’t just do something. They are forced to enter it as a task and then check it off when complete.

    That generates metrics that can be used to strong-arm staff to be more “productive”—i.e. ignore the real needs of patients. A physician is to be held accountable for handling 5.5 patients an hour when the hospital standard is 6. A nurse will get berated for clearing Priority 1 tasks in an average of 7 minutes rather than the expected 5 minutes—as if nursing care can that easily prioritized. Here are the apps, so you can see for yourself.

    You might think of it as the ‘publish or perish’ mindset brought into medicine. It is the metric madness that made Henry Ford’s factories such terrible places to work that the annual turnover was often over 100%. It is a madness that believes numbers—papers published or whatever—represent reality.

    The same bullying by who have nothing better to do with their time is also responsible for the woes of small building contractors, farmers, etc. In the case of hospitals and universities, those who’re too busy for politics lose out. In the case of government, the losers are often those who can’t afford high-priced lobbyists or large campaign contributions.

    In science, medicine and a host of other areas, it’s an endless and often unfair battle between those who do and those who want to exploit those who do.

    –Michael W. Perry, medical writer

  8. I have to mention that Springer is not that clear on the who pays the OA charges, even in the event that you are part of a special issue as an invited contributor. This has just happen to me, and at least in my eyes, as a junior scientist/postdoc. This is a great opportunity to pry on newbie scientist and make a pretty penny by hitting them with $3,000 fee.
    This is what it looks like:
    You never really know the OA charege will be $3,000.00 or that you will be taking care of it.

    Please indicate if you would like to:
    ? order Open Choice, i.e. publish the article as open access. The published version will then become freely availabe for anyone worldwide in exchange for payment of an open access charge.
    ? order paper offprints or e-offprints of your article upon issue publication
    ? order poster of your article with issue cover page, article title and the authorship
    ? order printing of figures in color in the Journal
    and to
    ? transfer the copyright of your article (if you do not order Open Choice)

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