Slides of the lecture delivered at MES Mampad College, Kerala, on July 18, 2019

1. Plagiarism, an everyday practice?
Dr Arul George Scaria
NationalWorkshop on Intellectual Property Rights: Industry and Academics
MES Mampad College, July 18, 2019

2.  Is there a crisis in Indian science?

3. Introduction

4. Introduction

5. Introduction – Some alarming figures!
 Papers from Indian researchers have some of the highest
fraud and retraction rates (PubMed 2000-2010 data)
 India publishes the highest number (27%) of predatory
journals globally (2015 study)
 The highest percentage (35%) of authors contributing to
predatory journals are from India (2015 study)
 Some journals add authors to papers they didn’t write,
often for a fee - (29.8%) of such journals are from India (2017
study)
http://blogs.nature.com/news/2010/11/us_scientists_more_prone_to_fa_1.html
https://bmcmedicine.biomedcentral.com/articles/10.1186/s12916-015-0469-2?mc_cid=15c208707e&mc_eid=1b1c736c25
http://retractionwatch.com/2017/09/13/authorship-sale-journals-willing-add-authors-papers-didnt-write/

6. Outline of the presentation
 Copyright and Plagiarism
 Potential Legal Consequences of Plagiarism
 Long-term Solutions to the Crisis

7.  Copyright and Plagiarism

8.  Are all instances of plagiarism
copyright infringement cases
also?
Image source: https://pixabay.com/illustrations/man-doubt-boy-black-person-kid-1529153/

9. What is plagiarism?
 Is there a universally accepted definition for ‘plagiarism’?

10. What is plagiarism?
 Black’s Law Dictionary: “The deliberate and knowing
presentation of another person's original ideas or creative
expression as one's own”
 UGC (Promotion of Academic Integrity and Prevention of
Plagiarism in Higher Educational Institutions) Regulations,
2018 - “Plagiarism means the practice of taking someone
else’s work or idea and passing them as one’s own.”

11. What is copyright?
 “Copyright is the legal term used to describe the area of
intellectual property law that regulates the creation and
use made of a range of cultural goods such as books,
songs, films and computer programs”
(Bently and Sherman, 2014)

12. Subject matter
Image source: http://www.amazon.in/Grassroots-Innovation-Minds-Margin-Marginal/dp/8184005873/ref=sr_1_1?ie=UTF8&qid=1467130689&sr=8-
1&keywords=anil+k+gupta

13. Subject matter
Image source: https://en.wikipedia.org/wiki/Musical_composition#/media/File:Scherzo_in_A_flat_(Borodin).png

14. Subject matter
https://en.wikipedia.org/wiki/Mona_Lisa

15. Subject matter

16. Subject matter
Image source: https://in.pinterest.com/pin/128774870566375002/

17. Subject matter
Image source: https://ldrpcee2015.wordpress.com/2015/09/18/terms-of-importance-algorithm-pseudocode-source-code-compiler-object-code/

18. Criteria for protection
 Do we need to comply with any formalities to get copyright
protection?
 Idea/ expression dichotomy
 Mere ideas, facts, principles, discoveries, etc. - not protectable
under copyright law

19. Criteria for protection
 Originality in expression – for literary, dramatic, musical and
artistic works
 ‘Originality’ - Different approaches in different jurisdictions
 Independent creation - Not copied from another work
 EBC v. D.B. Modak (2008) 1 SCC 1 – “Skill and judgment with a
flavour of creativity”

20. Nature of rights
 Bundle of rights
 Limited in duration
 Literary, Dramatic, Musical and ArtisticWorks:Author’s Life
+ 60 years
 OtherWorks: 60 years from the date of publication
 Territorial

21. Rights
 Economic rights
 Bundle of rights
 Right of Reproduction
 Right of Distribution
 Right of Performance/ Communication to the Public
 Right of Adaptation
 Right of Translation
 + Rights over technological protection measures and digital
rights management information

22. Rights
 Non-economic rights - Moral rights
 Right of attribution
 Right of integrity
 Sec. 57 of the Copyright Act 1957

23. Infringement
 R. G.Anand v. Delux Films,AIR 1978 SC 1613
 “the reader, spectator or the viewer after having read or
seen both the works is clearly of the opinion and gets an
unmistakable impression that the subsequent work
appears to be a copy of the original”

24. Exceptions to infringement

25. Why do we need exceptions to copyright?
Image source: http://programmedevelopment.com/developing-ability/training/project-management-abilities

26. Different approaches to exceptions
 Fair Use Approach
 Enumerated Exceptions Approach
 Hybrid Approach

27. Fair Dealing
 Sec. 52 (1)(a)
 Fair dealing with any work (not being a computer program) –
for the purposes of
 private or personal use, including research
 criticism or review
 reporting of current events and current affairs, including the
reporting of a lecture delivered in public

28. Fair dealing
 Whether there was a dealing?
 Whether the dealing was for one of the purposes specifically
allowed?
 Whether the dealing was ‘fair’?

29. ‘Dealing’
 Whether the defendant has made use of the work?
 Transactions between the parties not necessary

30. Purpose
 Test does not depend on the subjective intentions of the
infringer
 Objective approach required
 Whether the dealing was in the context of ……

31. Whether the dealing was fair?
 Question of degree and impression
Hubbard v Vosper – [1972]2 QB 84, 94
Lord Denning: "It is impossible to define what is "fair dealing". It
must be a question of degree. You must first consider the
number and extent of the quotations and extracts. Are they
altogether too many and too long to be fair? Then you must
consider the use made of them. If they are used as a basis for
comment, criticism or review, that may be fair dealing. If they are
used to convey the same information as the author, for a rival
purpose, that may be unfair. Next, you must consider the
proportions. To take long extracts and attach short comments
may be unfair. But, short extracts and long comments may be fair.
Other considerations may come to mind also. But, after all is
said and done, it must be a matter of impression."

32. Other exceptions
 Sec. 52 (1) (h)
 The publication in a collection, mainly composed of non-
copyright matter, bona fide intended for instructional use, and
so described in the title and in any advertisement issued by or
on behalf of the publisher, of short passages from
published literary or dramatic works, not themselves
published for such use in which copyright subsists:
 Provided that not more than two such passages from
works by the same author are published by the same
publisher during any period of five years

33. Other exceptions
Sec. 52(1)(i)
 The reproduction of any work –
(i) a teacher or a pupil in the course of instruction; or
(ii) part of the questions to be answered in an examination; or
(iii) answers to such questions

34. The Chancellor, Masters & Scholars of the University of
Oxford & Ors v. Rameshwari Photocopy Service & Anr
 Plaintiffs – CUP, OUP, T&F
 Defendant 1 – Rameshwari photocopy services
 Preparation of course packs by D1 - for students at 50 Paisa/
page
 5% to 33.8% of certain CR works
 Average % = 8.81%
 Average price of books = INR2542
 Highest price = INR15,889
Image courtesy: Pragya Jha

35. Single bench decision
 Justice Endlaw (September 2016)
 “…[T]he rights of persons mentioned in Section 52 are to be
interpreted following the same rules as the rights of a
copyright owner and are not to be read narrowly or strictly or
so as not to reduce the ambit of Section 51, as is the rule of
interpretation of statutes in relation to provisos or
exceptions.”

36. Single bench decision
 Sec. 52(1)(i) won’t be limited to reproduction in the course of
individualised teacher-student interactions, but would also
apply to reproduction by educational institutions in the course
of instruction
 No quantitative limitations u/s 52(1)(i)
 Under the scheme of Copyright Act, Sec. 52 (exceptions)
cannot be read as a proviso to Sec. 51 (infringement) – rights
of the persons mentioned u/s 52 had to be read expansively

37. Single Bench decision
 ‘in the course of instruction’ - includes “reproduction of any work
while the process of imparting instruction by the teacher and
receiving instruction by the pupil continues i.e., during the entire
academic session for which the pupil is under the tutelage of the teacher
and that imparting and receiving of instruction is not limited to personal
interface between teacher and pupil but is a process commencing from
the teacher readying herself/himself for imparting instruction, setting
syllabus, prescribing text books, readings and ensuring, whether by
interface in classroom/tutorials or otherwise by holding tests from time to
time or clarifying doubts of students, that the pupil stands instructed in
what he/she has approached the teacher to learn.”

38. Division Bench decision
 Justice Nandrajog and Justice Khanna (December 2016)
 Agreed with most aspects of SB Decision
 Students not potential consumers of those books
 ‘Course’ – irrespective of the word being treated as a verb or
noun, the entire process of education as in a semester

39. Division Bench Decision
 The core question should be – “whether the inclusion of
the copyrighted work in the course pack was justified
by the purpose of the course pack i.e. for instructional use
by the teacher to the class and this would warrant an analysis
of the course pack with reference to the objective of the
course, the course content and the list of suggested readings
given by the teacher to the students.”
 Expert evidence required

40. Plagiarism = copyright infringement?
 When is copyright in a work infringed?

41. Plagiarism = copyright infringement?
 R.G.Anand vs Delux Films, AIR 1978 SC 1613
 “There can be no copyright in an idea, subject matter, themes,
plots or historical or legendary facts and violation of the
copyright in such cases is confined to the form, manner and
arrangement and expression of the idea by the author of the
copyright work.”
 “One of the surest and the safest test to determine whether
or not there has been a violation of copyright is to seeing the
reader, spectator or the viewer after having read or seen both
the works is clearly of the opinion and gets an unmistakable
impression that the subsequent work appears to be a copy of
the original.”

42. Plagiarism = copyright infringement?
 Moral rights infringement?
 Sec. 57 of the Copyright Act 1957 (Author’s Special Rights)

43. Potential legal consequences
 Reverse passing off?

44. Potential legal consequences
 UGC (Promotion of Academic Integrity and Prevention of
Plagiarism in Higher Educational Institutions) Regulations,
2018

45. UGC Regulations 2018
 “Author” includes a student or a faculty or a researcher or
staff of Higher Educational Institution (HEI) who claims to be
the creator of the work under consideration
 “Higher Educational Institution (HEI)” means a university
recognized under section 2(f) of the UGC Act, 1956 or an
institution deemed to be university under section 3 of the
UGC Act, 1956 or an affiliating college/ institution or a
constituent unit of a university
 “Information” includes data, message, text, images, sound, voice,
codes, computer programs, software and databases or
microfilm or computer generated microfiche

46. UGC Regulations 2018
Duties of HEI
 Establish the organizational structure, as prescribed in the
regulations
 Enhance awareness about responsible conduct of research and
academic activities
 Promote academic integrity
 Prevent plagiarism

47. UGC Regulations 2018
Curbing Plagiarism
 Use appropriate software to ensure that documents such as
thesis, dissertation, publications or any other such documents
are free of plagiarism at the time of their submission
 Make those tools accessible to all engaged in research
 Mandatory undertaking from students
 Develop a policy on plagiarism - get it approved by relevant
statutory bodies/ authorities - Provide the policy on the
homepage of the HEI website

48. UGC Regulations 2018
 Mandatory submission of softcopies to INFLIBNET within a
month from the date of award of degrees - hosting them on
Shodh Ganga e-repository
 Mandatory creation of Institutional Repository (IR) - shall
include dissertation/ thesis/ paper/ publication and other in-
house publications

49. UGC Regulations 2018
 “The research work carried out by the student, faculty,
researcher and staff shall be based on original ideas, which shall
include abstract, summary, hypothesis, observations, results,
conclusions and recommendations only and shall not have any
similarities. It shall exclude a common knowledge or
coincidental terms, up to fourteen (14) consecutive words.”

50. UGC Regulations 2018
Departmental Academic Integrity Panel (DAIP)
 Chairman - Head of the Department
 Member - Senior academician from outside the department -
to be nominated by the head of HEI
 Member - A person well versed with anti-plagiarism tools - to
be nominated by the Head of the Department

51. UGC Regulations 2018
Institutional Academic Integrity Panel (IAIP)
 Chairman - Pro-VC/ Dean/ Senior Academician of the HEI
 Member - Senior Academician other than Chairman - to be
nominated by the Head of HEI
 Member - One member nominated by the Head of HEI from
outside the HEI
 Member - A person well versed with anti-plagiarism tools - to
be nominated by the Head of the HEI

52. UGC Regulations 2018
Levels of Plagiarism
 Level 0: Less than 10%
 Level 1: 10% to 40% similarities
 Level 2: 40% to 60% similarities
 Level 3: Similarities above 60%

53. UGC Regulations 2018
Penalties for students
 Level 0: Similarities up to 10% - No penalty
 Level 1: 10% to 40% - Submit a revised script within a
stipulated time period not exceeding 6 months
 Level 2: 40% to 60% - To be debarred from submitting a
revised script for a period of one year
 Level 3: Above 60% - Cancellation of registration
 Penalty in cases of repeated plagiarism?

54. UGC Regulations 2018
Penalties- plagiarism in academic and research publications
 Level 0 – Less than 10% - no penalty
 Level 1: 10% to 40% - Shall be asked to withdraw manuscript
 Level 2: 40% to 60% -
 Shall be asked to withdraw manuscript
 Shall be denied a right to one annual increment
 Shall not be allowed to be a supervisor to any new Master’s, M.Phil.,
Ph.D. Student/scholar for a period of two years
 Level 3: Above 60% -
 Shall be asked to withdraw manuscript
 Shall be denied a right to two successive annual increments
 Shall not be allowed to be a supervisor to any new Master’s, M.Phil.,
Ph.D. Student/scholar for a period of three years

55. UGC Regulations 2018
 Penalty in cases of repeated plagiarism?
 Penalty in cases wherein the benefit or credit has already been
obtained?
 Procedure in case of complaints against the head of the
institute?

56. UGC Regulations 2018
Diverse paths for initiating proceedings
 Reporting by any member of the academic community “who
suspects with appropriate proof” that a case of plagiarism has
happened in any document - DAIP shall investigate the matter
and submit its recommendations to the Institutional Academic
Integrity Panel (IAIP)
 Suo moto action from the side of HEI on notice of an act of
plagiarism - IAIP
 On the basis of findings of an examiner - IAIP

57.  Current status of the 2018 regulations?

58.  General approach of the Indian judiciary on plagiarism
related matters?

59. Dr P Ramamoorthi v. Madurai Kamaraj
University
 2000 Indlaw MAD 247
 Petitioner - Reader in English - Head (in-charge) of the
Department of Theatre Arts - many contributions at
international conferences - written 2 plays in English and 4 in
Tamil
 1981- International Shakespeare conference at Startford – met
many scholars including Dr W. B.Thorne
 1987 - Aligarh Journal of English Studies - ‘Ritual of Atonement
in Shakespeare's Late Plays’
 November 9, 1992 – Note fromVC, MKU regarding a report
received from AIU
 W. B.Thorne,‘The cycle of sin in Shakespeare's Late Plays’ (1982)

60. Dr P Ramamoorthi v. Madurai Kamaraj
University
 November 22, 1992 – Asked to appear before the Syndicate
Sub-Committee
 December 28, 1992 – Demotion to the lowest post – Lecturer
for a period of 6 years – debarred from guiding Ph.D. research
scholars
 Petition before the Madras HC
 Court: Respondents have complied with the procedure laid
down under the rules and regulations of the University -
Petitioner was provided adequate opportunity - the
possibilities of interference by the Court under Art. 226 under
such circumstances very limited

61. Dr P Ramamoorthi v. Madurai Kamaraj
University
 “Further, by the act of the petitioner, namely, committing
plagiarism, undoubtedly he had lowered the image of Madurai
Kamaraj University and the respondents are justified in taking
appropriate action... The petitioner, who had stolen the article
of another person and degraded the name of the University
and the Nation, cannot try to escape in the umbrella by saying
that plagiarism is neither dereliction of duty nor a misconduct.
As rightly contented, the act of plagiarism can be construed as
misconduct and dereliction of duty since the plagiarized article
was added to his contributions and was considered for
promotion…”

62. Dr P Ramamoorthi v. Madurai Kamaraj
University
 “I am satisfied that the name of Madurai Kamaraj
University was affected very badly because of the conduct
of the petitioner in plagiarizing the work of W. B. Thorne.
… I am satisfied that the demotion awarded to the
petitioner as a Lecturer along with the reduction to basic
pay is fully justified since the personal plagiarism
committed by the petitioner, the reputation of the other
research scholars in our State and country is also at stake.
If any indulgence is shown to persons like the petitioner,
who had verbatim plagiarised another man's article, the
name of the University in the international arena will be
ruined...”

63. Shashikant v. Sant Gadge Baba
Amravati University
 2009 Indlaw MUM 1201
 1990 - Petitioner - M.Phil in Statistics - “Review of Stratified
Random Sampling”
 2002- Petitioner - Member of Board of Studies in Statistics
 2006 - Complaint from a Professor - M.Phil. Dissertation
submitted was the same which the Professor had submitted to
Pune University in 1980
 2006 - Committee constituted under the Maharashtra
Universities Act 1994
 November 2006 - University issued two notifications - M.Phil
examination of the petitioner declared void - debarred for five
years for examination - Ceased to be a member of all the
authorities/ bodies of the university

64. Shashikant v. Sant Gadge Baba
Amravati University
 “... Moreover, we have perused the copy of the dissertation
submitted by the petitioner as well as by Prof. Nazir. We find
that the dissertation submitted by the petitioner is verbatim
copy of the dissertation submitted by Prof. Nazir and there is
absolutely no explanation offered by the petitioner not only
before the Committee but also before this Court. In this
factual background, we have to consider the case of the
petitioner. It is well settled by catena of decisions of the Apex
Court that fraud vitiates all actions.”

65. Shashikant v. Sant Gadge Baba
Amravati University
 “Insofar as the submission of Mr. Gordey that there is no bar
in taking the same subject taken by any other candidate for
submitting dissertation for M.Phil, is concerned, we have no
difficulty in accepting the same. But we are not inclined to
accept that a candidate, who submits dissertation for M.Phil,
can copy dissertation submitted by some other candidate
earlier. A candidate submitting dissertation of M.Phil, is
expected to do some original work.”

66. Dr. M. Venkataramanappa v. Chancellor,
Bangalore University
 2008 Indlaw KAR 32
 1995 - Approval of registration for Ph.D. - “Small Farmers in
Rural Karnataka - A Sociological Study”
 2002– change of language of dissertation/ guide
 2002 – submission of thesis and award of Ph.D.
 Complaints regarding plagiarism before the Chancellor and the
Vice-Chancellor - Out of 200 pages in dissertation, nearly 100
pages verbatim reproductions of pages from two books of the
guide

67. Potential legal consequences
 Report summary: “In short, I may summarise here by finding
as confirming that there is a prima facie evidence of
plagiarisation on the part of the author of the second
dissertation, who is said to be doctoral student of the author
of the first. Surprisingly, however, even the dissertation by the
research guide has sufficient evidence of plagiarisation from
other sources.”
 Constitution of 3 member committee of external experts
 Report of the committee: No plagiarism
 Chancellor - Appointment of a commission of enquiry
 Petition before the Karnatka HC

68. Potential legal consequences
 “In view of the well-settled principles of law laid down by the
Apex Court and this Court in catena of judgments, while
exercising the powers under Article 226 of the Constitution
Of India, the Courts must be reluctant to interfere in academic
matters and it is the prerogative and paramount consideration
of the academicians to take decision in order to uphold the
dignity of the institution.”

69. Potential legal consequences
 “When the petitioner could not complete his Ph.D. and submit
his Thesis for nearly six years seven months in the subject
chosen by him, as referred above, however, after obtaining
change of guide and to submit the Thesis in 'Kannada' language,
he has submitted the same within a short period of one month
and beyond the stipulated period, contrary to the regulation.
More surprisingly, the said Thesis has been accepted and
doctorate has been awarded to petitioner. Therefore, as rightly
pointed out by respondents in their statement of objections,
having regard to the magnitude of violation of the statute and
taking into consideration the totality of the case on hand, as
referred above, the first respondent has rightly exercised the
power conferred upon him...”

70. Potential legal consequences
 “… it would normally be wise and safe for the Courts to leave
the decisions of academic matters to experts who are more
familiar with the problems they face than the Courts generally
can be.”

71. Dr. Neetu Rani v. University of
Kurukshetra
 2013 Indlaw PNH 563
 2004 - Lecturer under the Self Financing Scheme - University
of Kurukshetra
 2009 - Resigned from the job
 Request for experience certificate denied - At the time of
resignation, a case of plagiarism was pending against her
 A notice was also issued to petitioner to explain her position
with regard to the complaint made regarding attempt of
plagiarism
 Approached the court for issuing a direction to the University
for issuing certificate without any comments – quashing the
notice issued for initiation of enquiry against the petitioner for
alleged plagiarism

72. Dr. Neetu Rani v. University of Kurukshetra
 Court: Issue the experience certificate to petitioner without
recording any comments
 Quashed the notice issued to the petitioner with regard to
allegation of plagiarism
 The information sought by the petitioner was never supplied
to her
 No condition was attached to the acceptance of resignation
- Respondents did not point out any rules which enabled the
University to either initiate an enquiry after an employee
leaves the service or even continue with the proceedings
initiated earlier

73. Jadavpur University v. Subhamoy
Singha Roy and others
 DB decision (Cal HC 2017)
 Two registrations for doctoral research
 “On some electronic and optical properties of non-linear
optical and opto-electronic materials”
 “On some electronic and optical properties of nano-
structured materials and related phenomena“
 One common supervisor
 Time gap between submission of theses – two months
 Approval of Ph.D. degrees, subject to ratification by EC -
Provisional certificate
 Anonymous call

74. Jadavpur University v. Subhamoy
Singha Roy and others
 Enquiry Commission - Vice-Chairman of the WB State Council
of Higher Education
 Commission: All except headers identical in pages 1-328
 May 2007- EC resolution
 EC resolution challenged before the Calcutta HC

75. Jadavpur University v. Subhamoy Singha
Roy and others
SB:
 “The pages that the Commission has expended on the matter
does not inform the petitioner as to whether the petitioner
had copied the eleventh respondent's work or whether the
two had teamed up and presented the same work under two
names or whether they had downloaded or otherwise
obtained the entire work from a third, external source. That
the two works are similar, if not identical, comes through from
the Commission's report. But if a person is penalised, it is
fundamental that the nature of his guilt be disclosed to him.”

76. Jadavpur University v. Subhamoy
Singha Roy and others
SB:
“As much as the reputation of the University as an institution of
academic excellence was at stake, it was the petitioner's
reputation and career on the line. For the one the other could
not be sacrificed...
The University followed a peculiar procedure in which the
petitioner may have been prejudiced...”

77. Jadavpur University v. Subhamoy
Singha Roy and others
SB:
 “A party appearing before a quasi-judicial body is entitled to know,
either expressly stated by the body or inferentially stated, what it is
to which the body is addressing its mind. It was incumbent on the
University to tell the petitioner that he stood condemned and was
worthy of the punishment for his having been found, on the
reasonable test of preponderance of probabilities, to be the
plagiarist. The Commission's findings do not inform him so. It is in
such failure that the other transgressions in procedure become
material: of the petitioner not being told what punishment lay in
store for him; of the petitioner not being allowed to examine his
witnesses or cross-examine those on whose statements he stood
indicted; of the records referred to by the Commission not being
given to him; and, of the Commission's report not being furnished
for the petitioner to have a chance to persuade the executive
council that on the Commission's findings he could not be inflicted
this heavy punishment.”

78. Jadavpur University v. Subhamoy
Singha Roy and others
DB:
“We are inclined to the view of reiterating the directions given
for commencing proceedings afresh treating the report of the
enquiry commission as a preliminary enquiry report, based
whereon a proper and regular enquiry should be conducted to
identify the plagiarist. The enquiry could be conducted by the
Executive Council itself or by delegating such task to a body of
expert(s) in the relevant field for such purpose.”

79.  General message from the Indian higher judiciary?

80.  Long term solution to the crisis

81.  Challenge the status quo

82.  Adopt open science practices

83. Open science broadly refers to
scientific inquiries wherein the
characteristics of accessibility,
transparency, usability, and non- or
minimal existence of IP
restrictions, are evident and exist
throughout all stages of research.
It is also characterised by
openness to inclusiveness,
collaboration, constant and
continuous transfer of knowledge
between producers and users of
knowledge, and prioritisation of
research and innovation based on
social needs.
What is Open Science?

84. Creative Commons (CC) Licenses
Most liberal Most restrictive
https://vimeo.com/13590841

85. Open Science India Report
 https://osf.io/aj9gw

86. Summary
 Plagiarism - a severe crisis faced by HEIs in India
 Researchers need more awareness about their rights as well as
obligations under copyright law
 UGC Regulations 2018 - a bold statement from the side of the
government to address plagiarism – but fails on many fronts
 Addressing the crisis from a long-term perspective - open
science should become the norm among the researchers

87. COMMENTS/ SUGGESTIONS:
arul.scaria@nludelhi.ac.in
@arulscaria
THANK YOU!