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Plagiarism, an everday practice?

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

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Plagiarism, an everday practice?

  1. 1. Plagiarism, an everyday practice? Dr Arul George Scaria NationalWorkshop on Intellectual Property Rights: Industry and Academics MES Mampad College, July 18, 2019
  2. 2.  Is there a crisis in Indian science?
  3. 3. Introduction
  4. 4. Introduction
  5. 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. 6. Outline of the presentation  Copyright and Plagiarism  Potential Legal Consequences of Plagiarism  Long-term Solutions to the Crisis
  7. 7.  Copyright and Plagiarism
  8. 8.  Are all instances of plagiarism copyright infringement cases also? Image source: https://pixabay.com/illustrations/man-doubt-boy-black-person-kid-1529153/
  9. 9. What is plagiarism?  Is there a universally accepted definition for ‘plagiarism’?
  10. 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. 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. 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. 13. Subject matter Image source: https://en.wikipedia.org/wiki/Musical_composition#/media/File:Scherzo_in_A_flat_(Borodin).png
  14. 14. Subject matter https://en.wikipedia.org/wiki/Mona_Lisa
  15. 15. Subject matter
  16. 16. Subject matter Image source: https://in.pinterest.com/pin/128774870566375002/
  17. 17. Subject matter Image source: https://ldrpcee2015.wordpress.com/2015/09/18/terms-of-importance-algorithm-pseudocode-source-code-compiler-object-code/
  18. 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. 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. 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. 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. 22. Rights  Non-economic rights - Moral rights  Right of attribution  Right of integrity  Sec. 57 of the Copyright Act 1957
  23. 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. 24. Exceptions to infringement
  25. 25. Why do we need exceptions to copyright? Image source: http://programmedevelopment.com/developing-ability/training/project-management-abilities
  26. 26. Different approaches to exceptions  Fair Use Approach  Enumerated Exceptions Approach  Hybrid Approach
  27. 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. 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. 29. ‘Dealing’  Whether the defendant has made use of the work?  Transactions between the parties not necessary
  30. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 40. Plagiarism = copyright infringement?  When is copyright in a work infringed?
  41. 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. 42. Plagiarism = copyright infringement?  Moral rights infringement?  Sec. 57 of the Copyright Act 1957 (Author’s Special Rights)
  43. 43. Potential legal consequences  Reverse passing off?
  44. 44. Potential legal consequences  UGC (Promotion of Academic Integrity and Prevention of Plagiarism in Higher Educational Institutions) Regulations, 2018
  45. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 57.  Current status of the 2018 regulations?
  58. 58.  General approach of the Indian judiciary on plagiarism related matters?
  59. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 79.  General message from the Indian higher judiciary?
  80. 80.  Long term solution to the crisis
  81. 81.  Challenge the status quo
  82. 82.  Adopt open science practices
  83. 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. 84. Creative Commons (CC) Licenses Most liberal Most restrictive https://vimeo.com/13590841
  85. 85. Open Science India Report  https://osf.io/aj9gw
  86. 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. 87. COMMENTS/ SUGGESTIONS: arul.scaria@nludelhi.ac.in @arulscaria THANK YOU!

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