Legal (and Ethical) Comment

Citation

Hannabuss, S. (2002), "Legal (and Ethical) Comment", Library Hi Tech News, Vol. 19 No. 2. https://doi.org/10.1108/lhtn.2002.23919baf.002

Legal (and Ethical) Comment

There has been a rash of concern recently. Perhaps it's because I've been susceptible to it through research on parody and plagiarism. Traditional concerns about differences between the authentic and the simulated, which have always pervaded debates about culture and morality, were turned upside-down by a vogue for postmodernism some time back. Current legal issues seem to be turning us full circle back to a mindset where difference matters again. Perhaps it's never really gone away. Some of these issues seem clear cut enough. Others don't.

OK, make fun of me, not OK!

Parody has always presented problems for searchers for the authentic. It's a form where works feed off other works and connive knowingly with readers to poke fun. It goes back to Aristophanes, takes in Rabelais and Pope, Barth and Vonnegut, and leads to great works (like Tristram Shandy) and less great works (like Katz and Winn's parody of Dr Seuss's The Cat in the Hat). The copyrights and trade marks for the Dr Seuss books are as legendary as those of Walt Disney. So when The Cat is NOT in the Hat! came out in 1995, satirizing the O.J. Simpson trial, not surprisingly there was an injunction, the plaintiffs having in advance seen advertisements for the parody. It differed substantially from the famous children's book: it was sardonic, world-wise, full of macabre imagery related to the trial.

The larger debate here is between freedom of speech and intellectual property rights. Parodies, by definition, parody other works, so issues of moral rights sweep in (you know, paternity, pejorative treatment and the rest). Issues of fair use also apply, and readers may be students of the destiny of the four-factor test often applied in law. This picks out the purpose and character of the use of the original copyrighted work. Has the new work been created for commercial purposes (many parodies are not)? Commercial use in itself may not make the parody unfair but could do so. We should ask whether the original work has been changed to the extent of mutilation, and the purpose and intention of the parody (which varies from poking mild fun to savaging the original and its author).

The second test is the nature of the copyrighted work. The work may be educational or informative, or fictional, so parodies will have a differentiated effect. The third test is the amount and substantiality of what is used from the original work, the so-called substantiality test. As in all issues of fair use, substantiality needs to be seen quantitatively and qualitatively. With a poem a parody could easily be all or most of it. With a song it might be not just the content but also the style of the singer. Don't worry, I won't imitate Hemingway or Runyon here, reach for culture or ask where the nearest crap game is. This encourages us to ask when a parody becomes an adaptation, or, better still, the other way round.

Parodies are adaptations in the sense that they "take" original material and "adapt" it ("take it off", or some, or most, of it). It may cause offence or amusement, usually not to the same people ­ usually amusement to the readers and offence to the author. The medieval notion of imitation being the sincerest form of homage has returned to us in the postmodern age, so that we recognize (and are intended to recognize) parodies in books we read and television programmes we watch. But often parodies make fun of originals, use satire and scorn, malice and polemic against the originals, winking at knowing readers who chuckle sardonically at the simulation.

The fourth factor is the effect on the potential market and value of the original. Even though parodies often aim at markets different from those of the original, the markets can overlap and cause confusion among consumers. Confusion can lead to commercial harm, as was alleged in the UK case about Baywatch and Babewatch. Other issues, such as product damage and defamation, may also get involved.

One moment, this is mine

It's sometimes difficult to tell whether a parody is an adaptation or an original work in its own right. After all, there is no copyright on ideas, merely on the tangible expression of those ideas. Ideas are as free as air, as is often said. This is why, in US and much other law, parodies are regarded as free speech and not copyright infringement (subject to the four tests). The expression of an author, however, may exist in that middle zone between tangible expression and air. An example of this is the story idea. I have an idea for a radio programme. I even gave it a provisional name ­ "The Idea Slot". I tell a producer friend of mine. She persuades her bosses to give her air space. She lines up contributors, including rival cognoscenti from other companies and universities. I'm left out of the loop. The programme comes on air and is a success, doing the producer's career no harm. There I am, left nursing my sense of grievance.

Coming up with such ideas is a risky business. But the idea can be protected. Copyright might ask for more than just an idea but contract law is content with ideas, if they can be made, in good time, in advance, the subject of a contract. Scavenging the media and entertainment law Web sites for evidence, I came upon the following advice from the ever-readable Mark Litwak (http://www,marklitwak.com/). Use a written contract before you meet the producer. It can take the form of an oral agreement: "Before I tell you my idea, I want to make sure that you understand that I am telling you this idea with the understanding that, if you decide to use it, I expect to receive reasonable compensation". Better write it down.

Confidentiality can be built in, too, so that third parties like the producer's friend don't hear about it. I'm waiting to hear about such cases in other walks of life where players already have a steady income, like academe. Extending it to the famously frequently by-lined professors in journal articles is a twist I'd like to hear more about, since it opens up not just intellectual property rights issues for faculty and researchers, but also the moral right of integrity, as well as the matter of plagiarism.

Hey, this is mine!

Busy people look for the essentials. It is with such professionals in mind that Kenneth Crews, of the Copyright Management Center at Indiana University/Purdue University, Indianapolis produced Copyright Essentials for Librarians and Educators for the American Library Association in 2000. It's a useful little book, sensibly organized, citing cases as it goes along. I particularly liked two sections ­ one was "on quoting from copyrighted works" (which sounds like Emersonian table-talk, but is not). Few fair use or fair dealing cases in the educational world ever reach court.

So when Professor Penelope wrote a book about English grammar and language, she didn't expect Brown to copy sentences as examples in Brown's book (a manual for new authors). Penelope v. Brown (792 F.Supp.132, D.Mass, 1992) is the case Crews cites, and the verdict? The court found that Brown had substantially expanded on material written originally by Professor Penelope, "making the use productive". It seems that lawyers like four-factor tests.

There was purpose: Crews concludes that the court found little commercial character in the use of the small excerpts, and found no improper conduct by Brown. There was nature: the original was non-fiction and available to consumers only through commercial channels/There was amount (the substantiality test): materials used by Brown were merely small excerpts. And there was effect: Crews concludes that the court found little adverse effect of Brown on Penelope, since the two books could coexist in the bookshops and consumers would not necessarily buy one at the expense of the other.

The other section of Crews's book which caught my eye was the one on "unpublished works" (on which he has done very interesting work). Ian Hamilton's well-known biography of J.D. Salinger first alerted me to this difficulty years ago (Salinger did not want it written, did not cooperate, in fact did everything to hide evidence from Hamilton, and indeed anyone else). Nonetheless Salinger's private letters did trickle out into the wide world through auctions and friends with letters, and, Crews reports, the disclosure of the letters became known about by the broadsheets. There has always been interesting archival confidentialities for librarians in rare books and special collections work, and, again, Crews alerts us to the Pynchon issue at the Pierpont Morgan Library. His discussion of the Sundeman v. The Seajay Society Inc. (142 F.3d 194, 4th Cir. 1998), where a researcher quoted from an unpublished literary manuscript, is revealing.

Please just mark it, don't check it too

This was my hinterland, then, as I ploughed through another 100 student papers recently. The adage that research involved using 50 sources, while plagiarism involved using only one, resonated in my mind. Part of the problem is that being original is said to be virtually impossible. One of the finest books on moral philosophy I know says that, without a lifetime's help and access to the ideas of other and greater beings, the author would never have written the book at all. We look for originality in doctorates, so do we have the right to look for them in student papers? Probably not, except perhaps in the arts and humanities, since for most of the time such papers ­ at best ­ merely demonstrate an ability to research, digest, analyze, synthesize, select, and present ideas which have been (when everything is boiled down) presented 100 times before a lot better.

Are we looking, then, for a kind of professional integrity and textual authenticity?

Probably yes, a state of affairs where research is carried out and other people's work is acknowledged. Where something borrowed is cited and transformed by an independent critical evaluation into something which conforms to assessment criteria.

So what do we do when paraphrases are used? These may be clumsy and transparent, or skilfully layered into a report as if, without a perceptible change of intellectual gear, they are the student's very own. It's been said that plagiarism, then, is partly a legal issue ­ thanks, I'll take that, and hope I won't be found out ­ and partly an ethical one ­ OK, I know it's not mine, but it's pretty harmless what I'm doing with it, it's not as if I'm publishing the wretched thing!

A useful distinction is often made between plagiarism, which is theft-of-authorship, and piracy, which is theft-of-text. It has taken on particularly important dimensions in the debate about academic author self-publishing. On the more modest level of student papers, plagiarism takes many forms, from turning in another student's work as your own to buying papers from a research service or "paper mill" on the Internet. Cut-and-paste of this kind turns do-it-yourself into an oxymoron. It's the area which brings plagiarism and parody together ­ both can threaten the notion of original authorship.

All this can be yours

Some mileage in the UK has come from a recent cause célèbre of a former university lecturer selling term essays and dissertations to university students over the Internet. She has been named in the Times Higher Educational Supplement (30 November 2001) as Elizabeth Hall, formerly of the University of Central England. It is reported that she sells her services for £35.00 per hour, and £45.00 per hour for doctoral-level work.

It reminded me of a piece I once wrote modelled on Swift's Modest Proposal. You'll recall that Swift used a reductio ad absurdum to argue that, since the people of Ireland were poor and hungry, and the birth rate was high, they should eat their children. In a piece called "Hire education", I argued that it might be logical, given the scale of alleged plagiarism in higher education, to come clean, cut our losses, own up, face facts. Just get students to pay academic staff to write their essays, reports, and dissertations, on a suitably calibrated scale according to difficulty, weighted by a factor based on the contingency and risk of being found out. Suitable warranty and liability exemptions could be built in, and appropriate academic standards (like copyright acknowledgement, defamation, etc.) could be built in. It never got published.

Interest in plagiarism detection has grown like weeds in recent times. JISC (Joint Information Systems Commitee) has an Electronic Plagiarism detection project in action. Evidence that plagiarism has grown is still ambiguous, it argues, but enough that the Internet exists to make it easier to copy other people's work and "with little or no alteration students can pass off unoriginal material as their own" (quoted from summary of the project at http://www.jisc.ac.uk/mle/plagiarism/).

Free text plagiarism detection software is included in the scheme, another growth area. Such services as Plagiarism.org and Turnitin.com are increasingly being known about and used. Some are free, like MOSS (http://www/cs.berkeley.edu/~aiken/moss.html), some come with free 15-day trials like EVE2 (http://www.canexus.com/eve/index3.shtml), some use standard search engines like Internet Essay Exposer (http://members.home.net/mclare99/essay). The old story ­ as crime increases, so does the machinery to fight crime.

Fingerprints, and writers who should have existed

A story that ran and ran is the one about the Ordnance Survey maps. It wasn't about peanuts, unless such nuts cost £20m over two years to license. It all started in 1996 when map-makers at the Ordnance Survey noticed that there were similarities between their maps and those of the well-known motoring organization, The Automobile Association (the "AA"). The AA argued inter alia that their own people had put the maps together. The OS came back asking why then did AA maps look so similar, even to the point of OS inaccuracies? OS cartographers appear to add tiny faults as fingerprints, like exaggerated curves in roads and rivers, in order to trap plagiarists.

If you know the UK LawZone Web site (http://www.lawzone.co.uk/), with its excellent coverage of legal issues, you'll know that they covered it and reported the OS as saying: "They are not errors or faults, but subtle and secret ways of detecting plagiarism, rather like watermarks". An out-of-court settlement was reached, under which the AA agreed to license OS maps for two years, and this covered suitable back-payments too.

Readers of this column will probably recognize the ploys. Database publishers do it, or say that they do it, for the same reason. Electronic publishing being global, and piracy hotspots being what they are, you can see their point. So I was broadly sympathetic when something new came my way earlier this year. It was a book review. The Cambridge Guide to Children's Books in English, edited by Victor Watson (Cambridge University Press, 2001) was the work in question. After getting a "feel" for the book as a whole, I steadily read through the entries, moving around, following up cross-references, checking with other works. There were Mark Twain and Peter Pan, Rider Haggard and Charlotte's Web, aboriginal culture in children's books, finishing up with Zemach, Zephaniah, and Zindel. All very sound.

Then there was the entry on Anthony Crabtree (1930-1995):

. . . prolific writer of children's novels and Professor of Children's Literature at Cavendish College, Cambridge, England, from 1974 until his death ... He is best known for his Crispin series (1952-1996). Crabtree's work has been praised for the skill with which it maps the ambiguous parameters of childhood and negotiates the dramas of cultural reproduction . . . Crabtree's writing career began with Crispin's Christmas (1952) and this was followed by 189 sequels. Crusoe Crispin was awarded the 1984 We Wallow in Water award for its contribution to the world's appreciation of the importance of learning to swim. Plans for a televised serial version of the Crispin stories came to nothing, because the author insisted on a complete run of the entire series, which would have lasted 26 years. Crabtree's reputation for obscurity was second to none.

It all sounded tongue in cheek, so I checked. No entry, biographical or bibliographical, appeared in the usual places. Cavendish College, Cambridge does exist but they told me that they were exclusively a women's college, and that no male fellows had ever been appointed. I began to wonder whether Crabtree really did exist. I've been reading children's literature, personally and professionally, for over 40 years. I'd never met him, and he seemed a worthy competitor for Harry Potter. An e-mail to the editor turned up the comment:

I've been rumbled, clearly. You are the first person, as far as I know, to question the genuineness of Anthony Crabtree . . . If Crabtree didn't exist, he is the sort of children's writer who should have done, if only because of the silly critical comment he would be likely to receive . . . On a more serious note, he is the only [author's italics] bit of mischief in the Guide . . .

The entry did contain this sentence ­ "As a series, the Crispin books resist the valorisation of the diminutive and engage in dialogic relationships with powerful cultural icons, enacting in narrative form broader cultural debates about childhood, historicism and the closure of adolescence". Maybe that was the silly critical comment he would be likely to receive. I began to wonder whether this was yet another ploy to anticipate and, if necessary, detect plagiarism. Like the Ordnance Survey. This was "confirmed" by a further e-mail from the Cambridge University Press itself: "I would like to stress that, in constructing one spurious entry, Victor Watson was employing an old technique used by some editors of reference works as a check on piracy of the work . . . apart from the entry on Crabtree, I know that he will have tried to ensure the accuracy of everything else in the book". Yet another e-mail told me that "a fake entry was inserted in the Oxford Companion to English Literature some years back, with similar intentions, I expect".

Balancing act

So now I ­ and I think we all ­ can put the matter into its proper context. There are times when entries act as fingerprints, watch-dogs, forensic ploys in the world of publishing. Certainly food for thought, which seems to make my comments on parody and plagiarism rather coy. I'll reach for my books on contractarian, normative, and virtue ethics some time soon, and get back to you on all this. By the way, hope you've had a chance to look at Mike Martin's Meaningful Work: Rethinking Professional Ethics (Oxford University Press, 2000): it takes us back to virtue ethics and professional ideals, and tells us how and why they're still important. Better still, I'll reread Joseph Badaracco's Defining Moments: When Managers Must Choose between Right and Right (Harvard Business School Press, 1997), one of my favourites, and work hard again on trying to understand the difference between one kind of act and another. I would read Crabtree on Ethics, but I think it's out of print.

Stuart Hannabuss (s.hannabuss@ rgu.ac.uk) is a member of the faculty at Robert Gordon University, Aberdeen, Scotland and writes the "Legal Comment" column for LHTN.