Background
Recently, I acted for a student seeking to overturn a finding of academic misconduct, namely plagiarism. It began with an allegation made by a design concern in relation to the student’s work, the student having completed a placement with the concern, as part of a module toward a Bachelor of Arts degree in Furniture and Product Design. Following an internal investigation by the student’s university, the decision of the School Academic Irregularities Panel (SAIP) was that a penalty would be applied to the student’s work, and the student’s degree was capped at a pass: a third to you and me, and distress for the student.
I was instructed to consider the papers. I advised the internal investigation by the university and the decision of the SAIP were wrong in law. The consequence was the student had only a few days before the expiry of a deadline to file a complaint with the Office for the Independent Adjudicator (OIA). The paperwork was prepared, and the complaint was filed with the OIA, in time. The outcome of the complaint was an offer by the university to re-run its investigation with a new SAIP: the OIA is not known for having sharp teeth. The offer was accepted.
What is plagiarism?
Plagiarism is not a legal construct, but an ethical concept, and varies according to the context in which it is alleged. In academic institutions, the definitions and commentary upon plagiarism vary considerably. The OED defines plagiarism as the “wrongful appropriation” and “stealing and publication” of another author’s “language, thoughts, ideas, or expressions” and the representation of them as one’s own original work. In her paper[1], Fishman defines plagiarism according to 5 elements: plagiarism occurs she says, when someone uses words, ideas, or work products, attributable to another identifiable person or source, without attributing the work to the source from which it was obtained, in a situation in which there is a legitimate expectation of original authorship, in order to obtain some benefit, credit, or gain which need not be monetary.
As for the university, plagiarism is
“The incorporation of material derived from the work (published or unpublished) of another, by unacknowledged quotation, paraphrased imitation or other device in any work submitted for progression towards or for the completion of an award, which in any way suggests that it is the student’s own original work”: it is a general definition, less precise than Fishman’s, though a variation on the same theme.
The definition applies, with a broad brush, to students at the university across all subjects: stretching a definition to encompass varied disciplines can cause interpretive uncertainty for all concerned.
Plagiarism and the law
Many authors have written of the confusion regarding copyright infringement and plagiarism, though I have yet to read a paper comparing design right infringement with plagiarism: the student having been a design undergraduate. Design right is the legal right held by a person in the physical manifestation of any shape or configuration, whether internal or external, of the whole or part of an article. Design right is certain, and protects the physical manifestation of the idea, but not the idea itself.[2] It is difficult to comprehend how plagiarism may include the ideas of others, as Fishman suggests, not least from an evidential point of view. A source of work should be manifest, and constitute more than an idea, or the expression of some common knowledge.
Plagiarism is less certain, and arguably subjective.[3] The title of Fishman’s paper “We know it when we see it” is not good enough…” is apt. Context is relevant, and in this regard, plagiarism is not dissimilar to design right infringement. ‘Fair use’ is a US term associated with copyright, but a similar concept exists in UK copyright and design law. It is not an infringement of design right to copy someone else’s work, when the act is done, among other circumstances, privately and for purposes that are not commercial, provided the source of the design is cited: plagiarism operates, more or less, along identical lines. Whether two works look alike is not evidence per se of plagiarism: understand context.
The expression of style
Designers often follow some movement, style, or genre in their work: in an academic context, it may be unusual for students of furniture and product design not to do so. It is absurd to suggest that because a work follows certain characteristics, no other work may be produced with the same characteristics. Characteristics are not relevant if they are commonplace, but instead there must be something about the source work that is attributable to a person. It is well established in design law that a new design may be produced from commonplace parts, and the application of the simplest engineering principles. Putting together several commonplace elements in a new way, or configuration can result in something that is not commonplace. Plagiarism is about specific work, not underlying characteristics.
The student’s work was influenced by Scandinavian design, a well-known design movement characterised by simplicity, minimalism and functionality that emerged in the early 20th century, and subsequently flourished in the 1950s: thank you Wikipedia. The concern described its products as “characterised by a quiet and elegant aesthetic” and “beauty found in simplicity”. There was nothing remarkable of the design aspects relied upon by the concern, and certainly nothing to suggest attribution: a table top lip radius, a leg outside radius, a rail curve, and a timber combination of oak and walnut. Such aspects were merely characteristics associated with Scandinavian design, which in any event did not match those of the student’s work.
Copying and derivation
In both Fishman’s and the university’s definition of plagiarism, derivation is relevant. In this regard, plagiarism is aligned with design right, in that a design right is not a monopoly right and may be infringed only by copying: any design that is independently created will not infringe even if it is identical. Similarly, it is necessary for the purposes of plagiarism to show copying. If the evidence is such that copying is not shown then the allegation of plagiarism must fail, and the context surrounding the creation of the design, such as privately and for purposes that are not commercial with citation, remains relevant, but is of less significance.
With proper consideration of the student’s written work, which included each of the student’s influences, it was clear the genesis was not those aspects relied upon by the concern, but instead the concept that lay behind Scandinavian design: form following function, as designers like to say.[4] Any similarities between the source work and the student’s work were not an indication of copying, but instead a process of independent thought and development. It was not the student’s case that design of the student’s work was entirely uninfluenced by the concern, and in the student’s written research appropriate referencing of the concern was made.
Conclusion
At the end of the second SAIP, the student and I reflected. A broad definition of plagiarism, one that was intended to apply across various disciplines, worked better with some subjects than others. Where a source work was well defined and specific, it was easier to identify if reproduced in a later work, but where a source work was merely the expression of a concept, it became more difficult to identify, or say with certainty that it was the work of another. Many works may be based upon the same concept, but that does not mean they are copies. The devil is always in the detail. Simply comparing look alike pieces of work is not enough, and it is necessary to investigate matters such as context, style, attribution, derivation and copying. As for the student, the second SAIP increased the grade from a pass to 2nd Class Honours – 1st Division Degree along with a Placement Diploma in Professional Practice.
[1] “We know it when we see it” is not good enough: toward a standard definition of plagiarism that transcends theft, fraud, and copyright, presented at 4th Asia Pacific Conference on Educational Integrity, University of Wollongong NSW Australia. (pp.1-5). Retrieved December 1, 2014 from http://www.bmartin.cc/pubs/09-4apcei/4apcei-Fishman.pdf.
[2] Rolawn Ltd v Turfmech Machinery [2008] EWHC 989 (Pat) at [79] per Mann J.
[3] In an academic context, plagiarism is often a matter of academic judgment.
[4] The student produced over 340 pages of written work, including among other things, 56 pages of background research, 20 pages of sketches and 69 pages devoted to models, mock-ups and prototypes.