Plaigarism and the law

       Joss Saunders
         For ALPSP
     30 September 2009
Aims of this presentation


   Demystify the law on plagiarism for publishers
   Explore the practical issues
   Recommend...
Proposition one

   Plagiarism is often, but by no means always, illegal




© Blake Lapthorn 2009
Plagiarism ≠ copyright infringement

   Plagiarism = no acknowledgement
   Plagiarism sometimes = ideas, not exact words
 ...
Copyright and plagiarism

   Copyright is infringed only if a “substantial part” is
   copied s16(3) Copyright, Designs an...
What is substantial?

   Sillitoe v McGraw-Hill Book Co
   Study notes were a substantial copy that reproduced
   between ...
Acknowledgement is not a complete
copyright defence

   Acknowledgement is a partial defence only for certain
   “acts per...
Practical problems

   Text: copyright and moral rights
   Tables/images: copyright and moral rights
   Data: database rig...
Some examples when plagiarism means
copyright infringement

   Taking whole pages of text
   Substantial copy of research ...
Proposition two: plagiarism in books is
more expensive than plagiarism in journals

   Journals: usual remedy is retractio...
Proposition three: even if no copyright
infringement, plagiarism can have other
legal consequences

   Disciplinary action...
Why do you have to be careful about
combating plagiarism?
   Libel
   Data Protection
   Freedom of Information Act
   Hum...
Libel

   Only libel if ‘published’ to a third party
   Not published if just write to author, or if referee’s
   comments...
What is your plagiarism policy?

   Do you hold ‘personal data’ about plagiarists
   ‘Plagiarists’ right of access to the ...
Proposition four: publishers can get caught
as piggy in the middle
   Upset authors and institutions can use publishers in...
Academic staff and students who plagiarize

   Employment law issues
   Professional regulation issues:
     –   disciplin...
Academic staff and students who plagiarize
- practical issues
   Who can see the papers?
   Can the professional regulator...
Seven steps to manage the risks of
plagiarism
   Check author contracts
   Check contracts with others in the supply chain...
If you have questions on this or other related topics, please contact:
   joss.saunders@bllaw.co.uk
   Blake Lapthorn is a...
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Plaigarism and the law seminar

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Blake Lapthorn solicitors' Publishing sector group held a seminar on plaigarism and the law during September 2009.

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Plaigarism and the law seminar

  1. 1. Plaigarism and the law Joss Saunders For ALPSP 30 September 2009
  2. 2. Aims of this presentation Demystify the law on plagiarism for publishers Explore the practical issues Recommend precautions to mitigate legal and financial risk All from perspective of English lawyer © Blake Lapthorn 2009
  3. 3. Proposition one Plagiarism is often, but by no means always, illegal © Blake Lapthorn 2009
  4. 4. Plagiarism ≠ copyright infringement Plagiarism = no acknowledgement Plagiarism sometimes = ideas, not exact words Some exact copying is allowed Copyright does not protect ideas, only their expression © Blake Lapthorn 2009
  5. 5. Copyright and plagiarism Copyright is infringed only if a “substantial part” is copied s16(3) Copyright, Designs and Patents Act 1988. Quality v quantity © Blake Lapthorn 2009
  6. 6. What is substantial? Sillitoe v McGraw-Hill Book Co Study notes were a substantial copy that reproduced between five and ten percent of two novels and a play © Blake Lapthorn 2009
  7. 7. Acknowledgement is not a complete copyright defence Acknowledgement is a partial defence only for certain “acts permitted in relation to copyright works” Criticism, review and news reports: “Fair dealing with a work for the purposes of criticism review … does not infringe any © in the work provided that it is accompanied by a sufficient acknowledgement” (s30 Copyright Act) © Blake Lapthorn 2009
  8. 8. Practical problems Text: copyright and moral rights Tables/images: copyright and moral rights Data: database right Music/sound recordings: performance rights, copyright and moral rights © Blake Lapthorn 2009
  9. 9. Some examples when plagiarism means copyright infringement Taking whole pages of text Substantial copy of research data Copying of small part, but containing most of value Non textual, but taking whole sequence and arguments in same order (eg history article) © Blake Lapthorn 2009
  10. 10. Proposition two: plagiarism in books is more expensive than plagiarism in journals Journals: usual remedy is retraction Books: pulp the book – offending publisher pays damages to – innocent publisher and author Books cases cost tens of thousands of £ in costs and damages © Blake Lapthorn 2009
  11. 11. Proposition three: even if no copyright infringement, plagiarism can have other legal consequences Disciplinary action Possible database rights claim Moral rights of paternity and integrity Misrepresentation Fraud Contractual breach of warranty in author contract © Blake Lapthorn 2009
  12. 12. Why do you have to be careful about combating plagiarism? Libel Data Protection Freedom of Information Act Human Rights Act University complaints systems © Blake Lapthorn 2009
  13. 13. Libel Only libel if ‘published’ to a third party Not published if just write to author, or if referee’s comments not circulated to editorial board Letter to Head of Dept is publication Retraction in journal may be libellous Defence of fair comment is defeated by malice © Blake Lapthorn 2009
  14. 14. What is your plagiarism policy? Do you hold ‘personal data’ about plagiarists ‘Plagiarists’ right of access to the data you hold on them: fishing expeditions for libel If you are a public body, or your editors are employed by a public body, Freedom of Information Act applies Human Rights Act balancing act between privacy and freedom of expression Are you following due process: link with employment policies © Blake Lapthorn 2009
  15. 15. Proposition four: publishers can get caught as piggy in the middle Upset authors and institutions can use publishers in proxy war against other authors and institutions Some war stories … The solution? © Blake Lapthorn 2009
  16. 16. Academic staff and students who plagiarize Employment law issues Professional regulation issues: – disciplinary allegations – breach of membership rules/codes of practice – process/Human Rights (Article 6?) – sanctions Students who plagiarize – fair procedures/natural justice. – HEI adjudicator – civil action © Blake Lapthorn 2009
  17. 17. Academic staff and students who plagiarize - practical issues Who can see the papers? Can the professional regulator call for a copy of the students file? What are the Data Protection issues? Can academic staff be called to give evidence before a disciplinary committee? Civil claims by students and others IT as an evidence tool? © Blake Lapthorn 2009
  18. 18. Seven steps to manage the risks of plagiarism Check author contracts Check contracts with others in the supply chain, particularly on-line aggregators and other distributors, and contracts with subscribers, particularly institutional subscribers Produce clear guidance notes for authors, for editors and for reviewers Clear plagiarism and fraud policy Clear Data Protection policy Insurance Have clear procedures in the event of litigation © Blake Lapthorn 2009
  19. 19. If you have questions on this or other related topics, please contact: joss.saunders@bllaw.co.uk Blake Lapthorn is an English law firm regulated by the Solicitors Regulation Authority under SRA number 448793 whose rules can be accessed via www.sra.org.uk This presentation is protected by copyright and is not a substitute for detailed advice on specific transactions and problems and should not be taken as providing legal advice on any of the topics discussed. A full list of our partners is available on our website at http://www.bllaw.co.uk/about_us/a_to_z_of_partners.aspx or at any one of our offices http://www.bllaw.co.uk/offices. © Blake Lapthorn 2009

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