Legal (and ethical) comment

Citation

Hannabuss, S. (2002), "Legal (and ethical) comment", Library Hi Tech News, Vol. 19 No. 10. https://doi.org/10.1108/lhtn.2002.23919jaf.002

Legal (and ethical) comment

The growth of electronic submission of student work in higher education has not gone unnoticed. Anne Hilton's research at Loughborough University, a study of the use of electronic submission in UK further and higher education (Hilton, 2002) identified distance learning, staff convenience, and the development of student key IT skills as drivers. There was a strong trend to lead from the bottom rather than the top, and the increasing availability of VLEs (virtual learning environments) was starting to force increased use. It was a natural development from e-mail. It did, of course, mean that change had to be managed (e.g. reluctant staff and students), and the provision of practical information and targetted individualized training were identified as being important to help this.

The growth of plagiarism

Interestingly, though most respondents to a survey recognized the relevance of plagiarism, only a few used an electronic detection device. Few universities appeared to expect to buy a commercial package for this purpose. Participants in Web-based courses were aware of the potential for plagiarism, above all where access to large stores of material could be editorialized and reframed and then passed off. Rarely does it happen, as in the famous story, that a lecturer listens to a student reading a paper in a tutorial, recognizes the work as his or her (the lecturer's) own, picks the book off the shelf, and goes on reading impeturbably, to the student's consternation. A colleague of mine was marking a master's dissertation a while back and recognized unacknowledged passages from one of his own books: the viva never took place. I have had lectures quoted back to me, even with acknowledgement. We all have. It takes us to what the difference is, if there really is one, between research (which is wryly said to be quoting 20 people) and plagiarism (which is quoting one).

Even if we define plagiarism as knowing cheating, it is a form of intellectual theft which still and often eludes detection, and, even when detected, is difficult to prove beyond reasonable doubt. It is usually not equated with copyright infringement, although it can be that, and the difference is often described as being between "theft of text" (the infringement) and "theft of authorship" which takes us in the area of the moral rights of the original author. The concept of 'passing off', from trademark law, is handy here for highlighting how the deception has the effect of confusing, or is carried out with the intention of confusing, the reader. In academe, student to teacher, but much wider than that, in that there are times when research papers, articles, and even books fall into this category.

The ease with which "mouse click plagiarism" can be carried out is picked up by Auer and Krupar in their article on this, and the role of technology in plagiarism and the librarian's role in combating it, in "Ethical issues in information technology". (This is the Winter 2001 issue of Library Trends (volume 49 number 3), issue edited by Robert Wengert.) Auer and Krupar suggest that the Internet and full-text databases have made student plagiarism a more serious issue than before. Cases in universities around the world are going up. Reasons include more Internet resources, the ease of cutting and pasting, lax attitudes towards citation, student ignorance about fair use (although any visit to, say, the Stanford Web site on fair use makes this no excuse), student collaboration (the shadow side of team building, that fashionable trend in education and human resource management), faculty reluctance to report, and a consumerist approach to getting a degree.

Help please

These are picked up too by the JISC Electronic Plagiarism Detection project (at: www.jisc.ac.uk/plagiarism/). It asks "why do students plagiarize?" and finds that there are many reasons – bad time management skills, being unable to cope with the work, believing the tutor does not care so why should they, external pressure to succeed, lack of understanding, simply being unable to do it (I am glad this came in because it resonates with an active debate in the UK currently – see the Times Higher Educational Supplement – that an intended student participation rate of 80 percent by 2010 and degree inflation is redefining the value and differential good characteristics of degrees), wanting see if they can get away with it, simply wanting to pass something rather than learn it, working together with other students in teams (collaboration can be blamed for a lot), and arguing (jesuitically!) that it would be only to insult the established experts in the field not to quote them and their ideas extensively.

This brings us to distinctions between direct copying, paraphrasing, acknowledged citation, and using sources as evidence and starting-points for one's own research, analysis, evaluation. Auer and Krupar suggest that librarians have an ethical obligation to talk about plagiarism in any teaching of bibliographic citations. More controversially, some librarians have found themselves involved in checking for plagiarism and even informing faculty. Not that this activity needs to be out-sourced to library staff in a university. Increasingly, albeit slowly, academic staff are alerting themselves to plagiarism detection. The JISC project aims to help in this. Four projects in fact exist – a technical review of free-text plagiarism detection software, a technical review of source code plagiarism detection software, a pilot of free-text detection software in five UK institutions, and a good practice guide to plagiarism prevention. So far, results suggest that solutions to plagiarism lie in prevention, and that this should come from the institution rather than from reliance just on plagiarism detection software.

That said, JISC found that the academic community did want some form of centralized detection service, and so is setting one up and supporting it for two years in the first instance. After that time, it is likely to turn into a subscription service. It will be placed on the JANET network and access will be through standard Web browsers. The supplier of the service was iParadigms (www.iparadigms.com). The service intends to provide advice on issues impacting at institutional levels (like guidelines for writing a plagiarism policy, sharing case studies of good practice, guidelines on handling electronic assignments) and academic levels (like guidelines on setting assignments where avoiding plagiarism can be built into the work as well as the marking, hints on searching for material on the Web, how to deal with students who plagiarize, and what forms of training students should get).

What exactly is it anyway?

The ease of cutting and pasting electronic material from the Internet, along with what is sometimes alarmistically seen as a cynical trend of indifference among faculty and opportunism among students, is one major factor underlying such initiatives. There is a real difficulty in deciding exactly what plagiarism is. Many student reports draw freely and openly on sources from the university library and the Internet. There are times, above all in densely bibliographical essays, where the originality, such as it is, lies more in the compilation skills of the writer than in any original thought or reasoning. Many courses lean overtly on mainstream textbooks that provide not just the structure but also a lot of the evaluation evident in the students' work.

Cut and paste does not, of itself, demonstrate intellectual second-rate-ness or dishonesty: some of the finest peer-reviewed articles demonstrate, at least in part, how reliant they are, and how frank they are to confess reliance, on the work of others. Is it, then, a quantitative matter – so much, rather than so little, and we can then declare that such and such a work shows evidence of plagiarism? Cut and paste behaviour might be detectable, and search engines like Google have been used for less. At the same time, by the very nature of the creative process, which selects and juggles with ideas, which may not and perhaps cannot create entirely original ideas, and may not need to do so at under-graduate levels, we might say that cut and paste is merely a technical counterpart of the way in which we all arrive at ideas and shape our arguments and present material.

The distinction about "theft of authorship", and the notion of "passing off" kick in here. Intentionality is a key factor in plagiarism. It is "knowingly" fraudulent. Yet even here, there may be cultural reasons why assumptions about personally owned information, even in tangible forms protected by copyright, might need to be brought in. Lee (2002) in a revealing piece in JILT (Journal of Information, Law & Technology, an electronic journal accessible at: (http://elj.warwick.ac.uk/jilt/) describes his business students at the Hong Kong University as being influenced, culturally and historically, by the age-old custom of embroidering on an old story. Cultural evidence of other kinds suggests that copying can be merely a form of accessing key knowledge resources, or even paying homage to them. One look at the Middle Ages suggests that our highly legalistic and capitalistic grand narrative about intellectual property rights has not been eternal or universal. One student told me last year, in a law course, that respect for established scholars encouraged her to draw on them so.

This knowing fraudulence, and the implied intention to pass off – the work of another as your own – sometimes takes the form of using a "cheat site". This, Foucault would say, is a hegemonistic legitimation of top-down meaning, and it's not the intention of this piece to imply that such sites are set up to promote fraudulence. The JISC Web site identifies typical "cheat-sites" which students have been found to use. Many are linked to each other. There are times when, with disarming naivety, my own students have cited 'essay banks' and other such sources as having been helpful to them in their work.

My reaction is probably typical in that, in part I behave like Sherlock Holmes and trawl through them, acidly using their search facilities, trying to work out just what, if anything, has been borrowed, the extent of the dependence, and in another part like a favourite mentor, trying tolerantly to suppress innate disapproval, working to find a way of advising students against merely relying on such sources, wondering why they thought they had to do it, feeling just a bit betrayed. They have beguiling and sometimes coy names – cheathouse, schoolsucks, getpapers, essaypower, and goldenessays. Recently in the Times Higher Education Supplement there were reports of a former university lecturer setting up such a service, not just for undergraduates but also for postgraduates, with a range of charges going up to doctorate. It really gives a new meaning to the term higher – and could we say "hire" – education. Postmodernists would see it as the logical conclusion to consumerism in education.

Advice is at hand but no one says it's neat and tidy

It is not my intention to characterize this issue as good guys and bad guys. Despite that, the growing trend for giving good advice, on good practice, reveals widespread concern. Carroll and Appleton (2001) have written a good practice guide on plagiarism. They base what they say on Oxford Brookes University in the UK. They start from the position that electronic communication has led to wider participation in, and interest in participation in, plagiarism and collusion in higher education. They argue that academic and policy decisions should be fair and coherent, and fully informed about plagiarism and why it takes place. They accept that anecdote can sensationalize the problem but that anecdote is increasingly being replaced by reliable evidence. The Quality Assurance Agency in the UK has charged institutions to have effective mechanisms to deal with breaches of assessment regulations, and to ensure due security. Such steps should inform the general academic community and deter the minority who set out to cheat.

Advice takes the form of designing out opportunities for plagiarism: modifying assessment tasks each time courses are taught; looking at learning outcomes and asking for analysis and evaluation related specifically (and idiosyncratically) to them; highlight opportunities for the display of individual effort; and build assessments so that one builds on another. Reinforce understanding of plagiarism and collusion, above all in group work, provide advice about citation and paraphrasing, advocate active learning, create a climate of student involvement and interest, provide information about consequences of plagiarism, have secure systems for recording and returning coursework, use assessment to check authenticity, (if you wish) use electronic detection software but as an adjunct rather than a replacement for academic judgement, reflect natural justice and human rights in any system of discipline, inform students about university activity against plagiarism. Carroll and Appleton (2001 suggest that plagiarism is not going to go away but at least it has been recognized and academics want to do something about it.

Contentious implications come to the surface when we introduce ethics into this matter. Given what plagiarism is, even though it is often more a matter of degree than not, the intention of the plagiarist, and the feelings of the plagiarized, matter a great deal. Ideas of hurt, harm, and even retributive justice pop up easily enough – reflected in graduated punishments, such as that at the University of Edinburgh, where first offences, especially if committed "innocently", earn a warning and guidance on correct behaviour, whereas repeated or deliberate plagiarism (one could argue that if it is the first then it is likely also to be the second) is punishable by having the offence entered on the student's record, reduction of marks, fines, suspension, and expulsion. If the degree is awarded and it is later discovered that the work was plagiarized, then the university has the right to withdraw the degree.

Plagiarism, as opposed to copyright infringement, emphasizes the conduct of the user of the material. Plagiarism can take place, whether the material is copyrighted or not. There does not need to be an economic interest in the person whosework is copied. Some plagiarized work may not even copyrightable. Copyright violations can occur where there is no plagiarism. These useful distinctions are made by writers like Ralph Mawdsley, whose study of academic misconduct (1994) still merits a close read. This takes us into the field of academic conduct and misconduct itself, and into the expectations and standards we have in professional work. Many students are aiming for professional work at the end of their degrees. Good practice advice can and should come from the professional end, and should be highly visible in plagiarism policy.

People live with deceit and lying in everyday life. Usually deception is regarded as a vice and honesty as a virtue, but lying can be socially necessary – think of white lies. It is also affected by culture and context. We may lie to protect our own feelings or those of another. Even institutions may adopt self-protective mechanisms. Plagiarism, like allegations of financial irregularities, can affect an institution in a very public way at a time when, through competition in higher education and the dominance of brand equity in marketing initiatives in universities, it can do the most harm. Plagiarism is also very difficult categorically and substantively to prove. A recent case (there are always new ones) in the University of Wales tells of a PhD investigated, after the event, for evidence of plagiarism. It was kept secret, then came into the public domain, yet even then, after extensive detective work, could not be proven as fraudulent. "Since we could not prove it," the chair of the examining board said, "we could not take away the degree".

Shades of wrong, degrees of fraud, passing or learning?

This raises some more interesting issues in its turn. One is the extent to which plagiarism is – or is not – more heinous, culpable, inexcusable if it is found to have taken place in academic work of a higher level of intellectual rigour. One of the arguments some undergraduates make about plagiarism is that it is only a tiny bit, and only a tiny bit of a small essay, which is just one small bit of the assessment. The argument, in effect, for a venial sin.

Another issue that surfaces is the extent to which any argument about the academic and ethical implications of plagiarism, regardless of the level of intellectual integrity or proportional importance of the assessment, is simply an issue about a "contested text". One contention of postmodernism is that the distinction between high and low art, authentic and simulated text/event/experience gets broken down. Deconstruction of the text and notions of "the author" characterize some of the work by thinkers in the field. By extension, texts are socially constructed. So the "real text" of a television series like "Friends" is not merely the actual programmes on the network but the wide range of meta-talk available on chatrooms and discussions groups. Arguably, too, texts are colleboratively created (a view of Bakhtin about discourse went this way).

We do not need theory to demonstrate how contestable not just texts but judgements about textual originality can become. In fact, knowledge of the inter-textuality of many modern texts, as well as the increasing use of e-mail discussion groups and intranet groupware, is providing an important part of a cultural shift. Intellectual property rights owners are responding with predictable rigour, insisting with increasing zeal on protecting software, licensing rights, safeguarding e-content. Cyberspace, though, has been overtaken by a generalized sentiment that what is there is there for me, and what is there is true. Plagiarism, then, comes at the junction of these developments and the student/consumer-led opportunism to pass rather than learn.

This is not a jeremiad. Plagiarism detection is more than ever an issue in the in-tray of policy makers who know, increasingly, that law-led reform alone, let alone technology-led reform alone, will not work. Like all forms of organizational cultural change, above all that where participants – learners and teachers – are meant to be collaborators in new forms of active learning, but where in assessment the deeper adversariality over accountability and standards is bound to emerge, the challenge has only just begun. That reminds me, finally, of something else. One apologia made by plagiarists is that the knowledge or information was universally known anyway, and how can anything so clearly in the public domain be plagiarized. Turn it round: equally widely known is the notion of what is mine and yours, and the ethical relationships and responsibilities between the two. It cuts both ways.

ReferencesCarroll, J. and Appleton, J. (2001), Plagiarism: A Good Practice Guide, JISC, Bristol, May.Hilton, A. (2002), "Study on the use of electronic submission in UK Further and Higher Education", Report by Loughborough University: Learning and Teaching Development, available at: www.jisc.ac.uk/pub02/esub_loughboro.pdfLee, O. (2002), "Dealing with plagarism in an electronic age", Journal of Information, Law and Technology, No. 2.Mawdsley, R.D. (1994), Academic Misconduct: Cheating and Plagiarism, National Organisation on Legal Problems of Education, Topeka, KS.

Stuart Hannabuss (s.hannabuss@rgu.ac.uk) is a Member of the Faculty at the School of Information and Media at the Robert Gordon University, Aberdeen, Scotland.