While researching a post recently, I came across an article containing a strange footnote, which read:

The publication costs of this article were defrayed in part by page charge payments. This article must hereby be marked “advertisement” in accordance with 18 U.S.C. §1734 solely to indicate this fact.

The publication was the Proceedings of the National Academies of Science, and the year it was published was 1999. I looked up US Code §1734, and it reads:

Whoever, being an editor or publisher, prints in a publication entered as second class mail, editorial or other reading matter for which he has been paid or promised a valuable consideration, without plainly marking the same “advertisement” shall be fined under this title.

The logic at work here seems to be that because the publisher or editor was paid — in the form of page charges — to publish an article, the article was therefore an advertisement. It’s an interesting interpretation, but ultimately a puzzling one, and news to me.

After asking around a bit via email, I found out that a number of other publications had carried a similar bit of wording in response to this subsection of the US Code and the postmaster’s interpretation of it.

There was actually a larger controversy driving the interpretation. There were differential second-class postal rates in the 1970s and 1980s, with commercial publishers paying a higher rate while non-profit publishers enjoyed lower rates. The commercial publishers lobbied against this, saying it gave non-profit publishers an unfair advantage. They ultimately turned to the argument that page charges constituted paid pages — i.e., advertising. Some publishers fought this interpretation, while others capitulated and included the statement.

Due to some inertia, the disclaimer text persisted far longer than necessary, remaining part of articles utilizing page charges well into the late 1990s or early 2000s. It was something habitually included in articles that were published after incurring page charges, and few questioned why the statement was attached. Ultimately, it became clear to all that it was a vestige from a bygone era, and was removed.

The relevant subsection of the US Code has only been modified once, in 1994, when the maximum fine of $500 was replaced with a more open-ended statement conclusion allowing an unlimited fine.

We are now in another era in which editors and publishers are encouraged to have their costs defrayed by payments or valuable consideration from authors. In that light, this little bit of history takes on a peculiar cast, which is only enhanced when you contemplate that the text is toothless unless second-class postage is involved, making it moot for online-only publications.

Are scientific papers advertisements? The economic model in our current publish-or-perish economy would assert that they have more in common with advertising than we might like to admit. As economist Paula Stephan said last year in an interview:

In the current environment, it is rational for scientists to pay for publication, especially since the costs are often absorbed by a funding agency.

Who is advertising is worth considering, as well. With funders wanting more “outcomes” (i.e., publication events) and the government wanting the same, it seems authors and funders are aligned here. Our publish-or-perish culture has certainly created some unintended consequences.

Are papers marketing? A study of funding sources for open access (OA) articles in 2010 concluded that:

Our results show that author-paid open access publishing preferentially increases accessibility to studies funded by industry. This could favour dissemination of pro-industry results.

Corporations are also funding more OA authors and articles, and when asked to provide information to readers about who is paying APCs, BioMed Central’s publishing director told me directly that she felt no reason to do this.

In an email from a colleague this year, I learned that some OA journals are being started in medicine as part of a sophisticated direct-to-consumer marketing approach — that is, placing papers in a publicly accessible OA journal, then selling the products that the studies support. This is not far from the Elsevier “fake journals” scandal, but is viewed by some as comparatively legitimate. Let’s call this “direct-to-consumer journal funding.”

However, unless we start printing and mailing again, or US Code §1734 is modified for only the second time in its history, it seems that at least as far as the US government is concerned, scientific articles are not legally considered advertisements — despite increasing evidence that they run the gamut from marketing to advertising, with corporate, professional, and academic interests commingling.

But a larger question remains — Are we entering another, and perhaps less well-controlled “articles as advertising” era?

(Thanks to JP, RD, JS, and NR for their help in recovering this little bit of history.)