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

1. Plaigarism and the law
Joss Saunders
For ALPSP
30 September 2009

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. Proposition one
Plagiarism is often, but by no means always, illegal
© Blake Lapthorn 2009

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
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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
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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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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