PLAGIARISM DETECTION: ISSUES OF COPYRIGHT INFRINGEMENT

PLAGIARISM DETECTION: ISSUES OF COPYRIGHT INFRINGEMENT

– RAGHAV PARTHASARATHY,

Teaching Associate and Advocate, National Law School of India University

INTRODUCTION

Research or academic progress for any individual is mainly dependant on his writing. From the past few years, due to exponential increase in the usage of internet and the contents uploaded, authors are finding easy way out to take contents from the popular journals or websites and publish it as their own without acknowledging the work of original authors. Inherent issue with this is that the original author’s idea and expressions are stolen without giving due credit. In legal parlance, it is referred to as infringement of copyright. In India, the Copyright and related rights are governed by the Copyrights Act, 1957 (hereafter ‘the Act’). Duplication of work either in part or on the whole amounts to plagiarism. In order to better understand the issues of plagiarism, we need to primarily understand the word Plagiarism^[1] which refers to “the practise of taking someone else’s work or idea and passing them as one’s own”.

Keeping an eye on curbing the issue of academic malpractices which includes plagiarism, the Government of India has recognised and approved for usage of Plagiarism checking software by the academic institutions, in the year 2018. Because of the rising cases of academic malpractices, the University Grants Commission has introduced the University Grants Commission (Promotion of Academic Integrity and Prevention of Plagiarism in Higher Education Institution) Regulations, 2018^[2] (hereafter ‘Regulations’).

For maintaining academic honesty and integrity, plagiarism detection softwares are being used by the Universities, Colleges and publishers. Therefore, it becomes necessary to understand how the Plagiarism detection software works. An article or writing is uploaded in the plagiarism detection software which could run up to hundreds of pages. The software, in turn runs it through several millions of pages and sites which compares it with the contents published online. Thereafter, a report is generated by the software which provides details as to the originality of work. The report essentially provides for the percentage of original or similar content in the work. The software compares the materials available across a large database throughout the world. Upon finding the relevant content, the software then matches and compares it with the data that is supplied to it. Functioning and accuracy of the software is wholly dependent on its ability to search for the relevant content available across different sites and database.

On one hand is the issue of detection of plagiarised content in a work and the violation of copyright, on the other is a pertinent question about the accuracy of such plagiarism detection and also about accessing of that content by the software, without the consent of the original publisher or author. Issues mentioned above raises plethora of other ancillary problems which requires careful, critical and technical analysis. In this article, the primary focus would be to address two critical issues which are –

1. Whether the software utilised for finding out the amount of similarity in any work infringes the rights of the copyright holder?
2. Whether the plagiarism detection business can be classified under Fair dealing clause as provided under the Copyright Act?

The issue of plagiarism till recently was only looked at from ethical and moral perspective. However, the Government felt it necessary to enact a law to address the issue. Post the enactment of Regulations the issue of plagiarism can now be dealt with legally backed by penalties.

REGULATION OF ACADEMIC MALPRACTICES

The Act of 1957 deals with several aspects including rights of copyright holder, infringement, fair dealing among other provisions. The Act also provides for imprisonment and fines for infringement of copyright. The academic standards regulator in India, the University Grants Commission (UGC), has established its own regulations for the said purpose. The ultimate consequence of any academic malpractice which includes plagiarism will result in not awarding the degree to the candidate committing such malpractices^[3]. The Regulation is specifically applicable to those students pursuing Masters and Research Programs. It has also been made applicable to the faculty, staff, and researchers of the Higher Education Institutes (HEIs). The Regulation specifies the HEIs to adopt plagiarism detection tools^[4] to identify and ensure quality in research.

Functioning of the said software is wholly dependent on the content that is available on different platforms. The software then compares and generates a report in order to ascertain the similarity with the work scrutinised. If in case, the work is found to be similar in content the report so generated will reflect the similarity index of certain percentage. Based on the said report, the academic institution may conclude whether a particular work is plagiarised or not. Reports generated by the software must be accurate and cannot be uncertain. In order to achieve this, the software developers while developing the source code, provide for a mechanism in the software which can search, refine results, access and store the contents from various sources. The work that is being accessed does not infringe the rights of the author of the original article, as the software merely uses it for comparing and not for any other purposes, which in turn protects the rights of the copyright holder. Such accessing of content published in journals and online sources does not amount to infringement of any sort. The term infringement refers to such acts which includes unauthorised use or reproduction of any copyrighted article and its distribution. Section 51 of the Act states as follows;

51. When copyright infringed— Copyright in a work shall be deemed to be infringed—

(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act—

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or

(b) when any person—

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or

(iv) imports into India, any infringing copies of the work:  [Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.]

Explanation — For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.

Upon a perusal of the above provision, it is clear that the infringement of the copyright is only possible when the exclusive rights of the copyright holder are impacted. The term exclusive rights includes the right to reproduce the said work, right to distribute, right to make derivative works, right to perform in public, right to follow, right to paternity and other rights which have been developed over a period of time to be known as the sui generis rights. The exception that is provided clearly states that the importing of any work for private and domestic use of the importer shall not be considered as infringement of copyright. Since, there are no decisions yet in India regarding the issue of copyright infringement due to the usage of Plagiarism detection software, reliance has been placed on foreign cases.

POSITION IN UNITED STATES OF AMERICA

One of the landmark cases relating to the issue of plagiarism and copyright was decided by the District Court in a suit filed by four high school students who were forced by their teachers to electronically submit their written work to plagiarism detection software namely Turnitin, run by iParadigms.^[5] The Court while considering the rival claims, significantly considered several factors which will be discussed in detail. The specific allegation in the suit was that the company was scanning the papers of the students and storing it in their database for making profits. The feature of archiving the work in the software database has to be approved by the School, which will only make the software more effective. It was held by the Court that scanning the student papers to detect plagiarism is a “highly transformative or adds something new, with a further purpose of different character”, that falls under the fair use provision of Copyright law. It was further held that “company makes no use of any work particularly expressive or creative content beyond the limited use of comparison with other works.” It was further held by the Court that, “iParadigms through Turnitin, uses the papers for an entirely different purpose, namely, to prevent plagiarism and protect the students’ written works from plagiarism.  iParadigms achieve this by archiving the students’ works as digital code and makes no use of any work’s particular expressive or creative content beyond the limited use of comparison with other works.”

POSITION IN UNITED KINGDOM

United Kingdom has strictly considered the issue of plagiarism and other academic malpractices. have The Quality Assurance Agency for Higher Education 2016^[7] has highlighted the need for curbing academic malpractices and for maintaining academic standards and integrity. A legislative mechanism is being considered to be adopted to counter such acts of academic malpractices. The Higher Education Council has already approved the usage of plagiarism detection software and the Universities have adopted it. The Quality Assurance Agency in Higher Education have adopted a strict view against the academic malpractices and have directed the Universities and academic institutions to adopt good practices for detecting and dealing with cheating and plagiarism.

Several Universities in United Kingdom including the University of Cambridge, in their Policy on the use of Turnitin UK text matching software at the University of Cambridge,^[6] have expressly recognised the usage of plagiarism detection software. Clause 5(b) of the said Policy states as follows;

“Intellectual property rights and copyright – The University’s use of Turnitin UK does not infringe students’ intellectual property rights or copyright to their work, which continue to reside with the original owner (normally students, with the exception of some collaborative or sponsored research projects). Use of the software is subject to the Turnitin UK Usage Policy.

Some students, particularly graduate research students, may have intellectual property or copyright agreements with their sponsor in which the sponsor owns the outcome of the research. This does not preclude use of Turnitin, because the rights to the work remain with the owner. However, students whose work is to be checked may need reassurance on this point. It may be worthwhile consulting the Staff Student Liaison Committee or student representatives before introducing the software.”

Universities and Government authorities have recognised the usage of plagiarism detection softwares to promote the academic standards. This may act as a deterrence to those who are involved in research writing without any originality.

FAIR USE OR FAIR DEALING

The District Court of Virginia also noted that “the more transformative the new work, the less will be the significance of the other factors, like commercialism, that may weigh against a finding of fair use”.

The court also relied on the doctrine of substantial public benefit to rule in favour of iParadigms and held, “… provides a substantial public benefit through network of educational institutions using Turnitin. Thus, in this case, the first factor favours a finding of fair use”. That apart, the Court also took note of another factor namely, “the nature of the copyrighted work”. The reasoning of the Court is as follows;

“In this case, this factor is of lesser import because the allegedly infringing use makes no use of any creative aspect of the student works. Rather, iParadigms’ use relates solely to the comparative value of the works. Nevertheless, iParadigms’ use in no way diminishes the incentive for creativity on the part of the students. On the contrary, iParadigms’ use protects the creativity and originality of student works by detecting any efforts at plagiarism by other students….”

The third factor that was considered by the Court is regarding “the amount and substantiality of the portion used”. Even though iParadigms was using the original work in its entirety, the success of the software is dependent on its accuracy. The student works are stored digitally and reviewed electronically by the Turnitin for comparison purposes only. Such use of software has been held to be “highly transformative and highly beneficial to the public through educational institutions using Turnitin”. It was further pointed out by the Court that “In fact, iParadigms’ use of Plaintiffs’ work has a protective effect, preventing others from using Plaintiffs’ work as their own and protecting the future marketability of Plaintiffs’ work”.

The contention of misuse of the papers was also negated by the Court as the software would serve for the public benefit. If the contention of the Plaintiffs’ are to be considered, then it would run counter to the purpose of Copyright Act which encourages creative, original work. Court also considered the fourth factor which is, “the effect of the use upon the potential market for or value of the copyrighted work”. This factor was held to be undoubtedly the single most important element of fair use. This factor requires the Courts to consider both the extent of the market harm caused by the defendant, and whether the conduct of the sort engaged in by the defendant would cause substantial adverse impact on the potential market for the original.

Another case relevant to the context is again drawn from United States of America in the case of Perfect 10 v. Google Inc.^[8] The Court addressed the issue of thumb-nail sized images used by Google belonging to Perfect 10 website, and whether that would amount to Copyright infringement. The Court held that “Google’s reproduction of the image was “highly transformative” because although an image may have been created originally to serve an entertainment, it provides a social benefit by incorporating an original work into a new work, namely, an electronic reference tool”. The thumb-nail sized image of Perfect 10 was used as a search engine which transforms the image into a pointer to direct a user to a particular source of information. Thus, the transformative nature of the use of the Perfect 10 image by Google does not diminish, as the thumbnail serves a different function and purpose of the original work.

CONCLUSION

Considering the issues as discussed earlier, plagiarism detection software have been held to be not infringing the copyrights of the authors. The justification for arriving at this conclusion stems from the reasoning provided for in the case of A.V., et al., v. iParadigms. The principles of the said case can also be applied to the Indian context. Even though the judgments cited above are not directly applicable in India, the judgments have persuasive value and the principles can be suitably applied in the Indian context. The issue of copyright infringement and functioning of plagiarism detection software is crucial one. To summarise, the key points that are relevant for our reference are as follows;

1. The purpose and character of the use, including whether such use is of commercial nature or is for non-profit education purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

Plagiarism detection software has been considered as an exception to the copyright, as it has been classified under the doctrine of Fair use in United States. Drawing the said logic to the Indian context, the doctrine of fair dealing as provided under Section 52 of the Copyright Act, 1957 can be applied here as well. Therefore, the business of plagiarism detection is not in violation of the provisions of Copyright laws in India.

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^[1] Definition of Plagiarism Regulation 2(l) of University Grants Commission (Promotion of Academic Integrity and Prevention of Plagiarism in Higher Education Institution) Regulations, 2018

^[2] Notified on 23^rd July, 2018 under the University Grants Commission Act, 1956.

^[3] Regulation 12 – Penalties.

^[4] Regulation 5(c)(iv) and 5(c)(v) – Awareness Programs and Trainings.

^[5] A.V. v. iParadigms, LLC., Civil Action No.07-0293, Alexandria Division, United States District Court for the Eastern District of Virginia, March 11, 2008.

To Students’ dismay, plagiarism detection website protected by “Fair Use”.

^[6] Effective as on 01 October, 2016.

^[7] Plagiarism in Higher Education – Custom essay writing services: an exploration and next steps for the UK higher Education sector. https://www.qaa.ac.uk/docs/qaa/quality-code/plagiarism-in-higher-education-2016.pdf?sfvrsn=308cfe81_4

^[8] 487 F.3d 701 (9^th Cir. 2007)