Can a (predatory or fake) journal refuse to withdraw a non-published paper, even though the journal is to blame for withdrawal request?

Question

Synopsis: Can a fake journal keep the copyright of a submitted (not published) paper, despite the authors' request to withdraw it (because of the journal not keeping its full-waiver promise and also not following a correct article processing routine)?

Is this legally possible for the thief to legally keep the theft (and unpublished) article? Or can the authors ignore the previous journal's threats, and submit the paper to another journal?

The authors have paid no fee and will not pay any. But they want their paper back, so that they can submit it to another journal.

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Details:

1. My friends submitted their paper to a legit-looking journal, on the condition that it has no article processing charges (APC) and fees, if accepted.

2. The journal agreed with no-fee request; they received the manuscript, and despite its promise of speed, it did nothing for 7 months. After 7 months, the authors asked about their paper, and due to the journal's lack of response, the authors withdrew the paper.

3. The journal replied after the withdrawal request that: it is accepted and in proofing stage (without any peer-review or revisions or even without any acceptance letter!). The journal asked for 1200 Euros to publish the paper.

4. The authors reminded the journal of their condition of No-APC.

5. The journal gave some untrue (completely provable), again asking for APC.

6. The authors asked for withdrawal again.

7. The journal refused, unless the authors pay about 700 Euros. The journal told the authors they are not allowed to submit their paper to any other journal because it is with the (predatory) journal and the journal has the copyright now. Is this possible?

• NOTE: Upon the submission, the authors have told the journal that the paper is not submitted to any other journal and under consideration anywhere. Can the journal abuse this statement to keep the theft material?
• NOTE: No copyright transfer was signed or sent to the journal upon submission.
• NOTE that the journal as well is bound to publishing the paper (if peer-reviewed and accepted) without any APC, as per their agreement with the authors.
• NOTE that the journal has not even peer-reviewed the paper!
• NOTE: The journal had not even accepted the paper (there is no acceptance email)!
• NOTE: The journal is open access and its website states that the authors retain the copyright (not that their website is authentic or that they follow their own guidelines, but even their website does not say anything about automatically transferring any copyrights to the journal upon the submission).
• NOTE: The journal rushed to hastily accept the paper (without any peer review or revision) AFTER the authors' withdrawal. First, the authors sent 2 emails to the journal, requesting to withdraw the paper. Then, the journal said "the paper is in proofing stage and pending payment" (despite the no-payment agreement). So one may say that the paper was withdrawn BEFORE the (so-called) acceptance, right?

Questions:

1. Can the authors ignore the journal and submit the paper to another journal?
2. If so, how?
3. If not, what should be done?
4. What else should the authors do? For example, if they want to sue the journal, how should they do so?

ps. I see David's answer in this thread may be relevant to my question. The difference is that my friends' paper is not published (nor peer reviewed): How can I withdraw a publication from a predatory (fake) journal and resubmit to a legitimate journal?

Answer 1

The journal has nothing to "give back" and no basis for demanding payment. As long as the authors still hold copyright the work is theirs and theirs alone.

All that is required is a communication that you are withdrawing the paper from further consideration. While it is good to wait for confirmation that they have received your withdrawal, you don't need their agreement.

A submission is an "offer" not a gift. You offered them something of value but they put conditions on acceptance that you don't like. That is on them.

Also, the journal doesn't need to be predatory for the above to be valid.

Answer 2

In addition to the excellent answers by Buffy and Anonymous Physicist, I will add a few points. For the sake of completeness, let me summarize the key issues I see here. I am not a lawyer, but I do have a decent understanding of copyright law:

• As long as you did not formally transfer the copyright or grant a formal licence (e.g., signing a document that explicitly says that you transferred the copyright or that you explicitly authorize publication), you retain full copyright. No matter how much work the journal does or does not do on your manuscript (e.g., legitimate peer review and full copy editing), as long as you have not transferred copyright, you retain full ownership of your manuscript and you can do whatever you want with it, including withdraw it.
• Your formal notice of withdrawal is all that you need to do to fulfill your ethical obligation of not submitting to two journals at the same time. It does not matter if the first journal refuses to withdraw the article from consideration. They have no right to do anything with your article (since you did not give them any legal right beyond merely reviewing the manuscript).
• As long as they do not publish the manuscript, their threats mean nothing. However, they are not allowed to publish your manuscript without your permission. That would be a copyright violation and you could sue them for that. They know this, so they will probably not do anything beyond empty threats. It is annoying, but you can safely ignore them.
• Considering submitting to other journals, you can safely say that your manuscript is not under consideration in any other outlet. As far as you are concerned, that is true. (And considering that they probably did not even peer-review your manuscript, that is even doubly true.) You should probably NOT mention anything about the predatory journal--just say that your manuscript is not under review elsewhere.
• In the worst-case but highly unlikely scenario, the predatory journal might contact the journal in which you eventually publish to say something. If they do that, simply send the new editor your history of communications. That should be sufficient for any reasonable editor. Their main concern would be that you did not sign any copyright statements with the predatory journal. As long as you did not do that, there should be no problem.

Answer 3

Is this legally possible for the thief to legally keep the theft (and unpublished) article?

A more relevant question would be: Can someone libel me and legally get away with it? The answer is yes, they can, if you cannot find them. In most cases it is not practical to enforce laws or contracts broken by a predatory journal. You probably cannot even find out what country they are in.

If their web host happens to be in the US, if they chose to publish the paper without your consent you could send the host a DMCA notice to remove a published article. All this does is prompt a malicious publisher to change hosts.

• Can the authors ignore the journal and submit the paper to another journal?

Yes.

• If so, how?

You already withdrew the manuscript. Just submit it to another journal saying "this manuscript was withdrawn by the authors from consideration at another journal." No details are needed.

• What else should the authors do?

Check the reputation of journals more carefully before you submit.

• For example, if they want to sue the journal, how should they do so?

That would be a waste of money, even if you can locate them.

Answer 4

I'll offer a different perspective as to what usually happens when the new journal receives your "duplicate submission". The standard COPE guidelines look like so:

I highlight the key step. Even if the new journal suspects duplicate publication, you are given a chance to defend yourself. That's when you show the new journal all the correspondence you had with the original journal, which will quickly land you in the "satisfactory explanation" box, and the review process will proceed as normal. The old journal cannot stop publication; they can only trigger an investigation.

Be sure to keep the correspondence, in case it really comes down to an investigation. You could also include the correspondence in the cover letter when you submit, which might pre-empt any suspicion.

Answer 5

I disagree with other answers with regard to whether you can resubmit elsewhere. My personal opinion is that if you know the paper is being published elsewhere, legally or not, you have the responsibility to at least tell your target journal about the situation when you resubmit.