Attempt at dual publication

Case number: 
07-26
Anonymised text of the case: 

In October 2005, our journal commissioned a review on a specific topic from an expert in that field. The commission was accepted, and a submission date set. This was followed up and renegotiated several times over the coming months. A first draft was received in January 2007, and assessed inhouse for feedback to the authors. Some suggestions were made regarding structure and content, and the manuscript was officially submitted in August 2007. As considerable time had elapsed since the original commission, a check was made to ensure that the review was still timely. A publication was noticed in May 2006 by the author, in another journal, with the same co-author on both. This was further found to have a near-identical abstract, and a copy was then requested. When received, a side-by-side comparison found the manuscripts to be approximately 90% the same, with entire sections duplicated. Differences comprised slightly poorer language usage in the recent submission, some single sentence updates, one extra paragraph in one section and some changes to the conclusions. Some sections from the published review had been deleted to fit our shorter word limits. No reference to the earlier publication had been made at any stage. A retrospective check showed that the first draft had been even more similar to the published version.
Both authors were contacted to explain:
-         why a near-identical manuscript had been submitted;
-         how this situation had happened, given the timeline and date of original commission.
In reply, the authors stated that the organisation of the manuscripts was different and similarities inevitable. They stated that they had hoped for reviewer feedback on how to change the structure and wording. They asked to have a revised manuscript reconsidered.
Does this constitute an attempt at dual publication? If so, what further action should we take?

Advice: 

The Forum agreed that this was an attempt at duplicate publication. The authors should be contacted and told that their behaviour was unacceptable. It should be explained to them that if the editor had published the review, copyright may have been infringed as essentially the same article would have been published in another journal, thereby putting the journal in a very difficult position. Some suggested that in the future, the commissioning letter should state that there should be no significant overlap of information between any two papers, and perhaps this should also be added to the instructions to authors. There was disagreement as to whether the first journal should be contacted, with some arguing that it should, while others suggested that as this was an attempt and not a breach of ethics it was not necessary to inform them.

Follow up: 

Further to the discussion at COPE, we checked the copyright on the initial publication, and found that copyright would indeed have been breached had we published our manuscript. The authors were contacted to be advised that we would not be considering the manuscript further, that they would have been in breach of copyright had we proceeded, and quoting from our original commissioning letter, which flagged the unacceptable nature of copying sentences and paragraphs from published papers whether the authors own or by others. We then heard back from the authors stating they understood our position and thanking us. We also decided not to contact the journal in which the article had been published.

Resolution: 
Case Closed
Advice on follow up: 
Year: