History as Caution — When Paid Scientific Articles Were Legally Considered “Advertisements” | The Scholarly Kitchen

"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? ..."