I was astonished yesterday to read Understanding and addressing research misconduct, written by Linda Lavelle, Elsevier’s General Counsel, and apparently a specialist in publication ethics:

While uncredited text constitutes copyright infringement (plagiarism) in most cases, it is not copyright infringement to use the ideas of another. The amount of text that constitutes plagiarism versus ‘fair use’ is also uncertain — under the copyright law, this is a multi-prong test.

So here (right in the first paragraph of Lavelle’s article) we see copyright infringement equated with plagiarism. And then, for good measure, the confusion is hammered home by the depiction of fair use (a defence against accusations of copyright violation) depicted as a defence against accusations of plagiarism.

This is flatly wrong. Plagiarism and copyright violation are not the same thing. Not even close.

First, plagiarism is a violation of academic norms but not illegal; copyright violation is illegal, but in truth pretty ubiquitous in academia. (Where did you get that PDF?)

Second, plagiarism is an offence against the author, while copyright violation is an offence against the copyright holder. In traditional academic publishing, they are usually not the same person, due to the ubiquity of copyright transfer agreements (CTAs).

Third, plagiarism applies when ideas are copied, whereas copyright violation occurs only when a specific fixed expression (e.g. sequence of words) is copied.

Fourth, avoiding plagiarism is about properly apportioning intellectual credit, whereas copyright is about maintaining revenue streams.

Let’s consider four cases (with good outcomes is green and bad ones in red):

  1. I copy big chunks of Jeff Wilson’s (2002) sauropod phylogeny paper (which is copyright the Linnean Society of London) and paste it into my own new paper without attribution. This is both plagiarism against Wilson and copyright violation against the Linnean Society.
  2. I copy big chunks of Wilson’s paper and paste it into mine, attributing it to him. This is not plagiarism, but copyright violation against the Linnean Society.
  3. I copy big chunks of Rigg’s (1904) Brachiosaurus monograph (which is out of copyright and in the public domain) into my own new paper without attribution. This is plagiarism against Riggs, but not copyright violation.
  4. I copy big chunks of Rigg’s paper and paste it into mine with attribution. This is neither plagiarism nor copyright violation.

Plagiarism is about the failure to properly attribute the authorship of copied material (whether copies of ideas or of text or images). Copyright violation is about failure to pay for the use of the material.

Which of the two issues you care more about will depend on whether you’re in a situation where intellectual credit or money is more important — in other words, whether you’re an author or a copyright holder. For this reason, researchers tend to care deeply when someone plagiarises their work but to be perfectly happy for people to violate copyright by distributing copies of their papers. Whereas publishers, who have no authorship contribution to defend, care deeply about copyright violation.

One of the great things about the Creative Commons Attribution Licence (CC By) is that it effectively makes plagiarism illegal. It requires that attribution be maintained as a condition of the licence; so if attribution is absent, the licence does not pertain; which means the plagiariser’s use of the work is not covered by it. And that means it’s copyright violation. It’s a neat bit of legal ju-jitsu.

References

  • Riggs, Elmer S. 1904. Structure and relationships of opisthocoelian dinosaurs. Part II, the Brachiosauridae. Field Columbian Museum, Geological Series 2:229-247, plus plates LXXI-LXXV.
  • Wilson, Jeffrey A. 2002. Sauropod dinosaur phylogeny: critique and cladistic analysis. Zoological Journal of the Linnean Society 136:217-276.

We know that most academic journals and edited volumes ask authors to sign a copyright transfer agreement before proceeding with publication. When this is done, the publisher becomes the owner of the paper; the author may retain some rights according to the grace or otherwise of the publisher.

Plenty of authors have rightly railed against this land-grab, which publishers have been quite unable to justify. On occasion we’ve found ways to avoid the transfer, including the excellent structured approach that is the SPARC Author Addendum and my tactic of transferring copyright to my wife.

Works produced by the U.S. Federal Government are not protected by copyright. For example, papers written by Bill Parker as part of his work at Petrified Forest National Park are in the public domain.

Journals know this, and have clauses in their copyright transfer agreements to deal with it. For example, Elsevier’s template agreement has a box to check that says “I am a US Government employee and there is no copyright to transfer”, and the publishing agreement itself reads as follows (emphasis added):

Assignment of publishing rights
I hereby assign to <Copyright owner> the copyright in the manuscript identified above (government authors not electing to transfer agree to assign a non-exclusive licence) and any supplemental tables, illustrations or other information submitted therewith that are intended for publication as part of or as a supplement to the manuscript (the “Article”) in all forms and media (whether now known or hereafter developed), throughout the world, in all languages, for the full term of copyright, effective when and if the article is accepted for publication.

So journals and publishers are already set up to deal with public domain works that have no copyright. And that made me wonder why this option should be restricted to U.S. Federal employees.

What would happen if I just unilaterally place my manuscript in the public domain before submitting it? (This is easy to do: you can use the Creative Commons CC0 tool.)

Once I’d done that, I would be unable to sign a copyright transfer agreement. Not merely unwilling — I wouldn’t need to argue with publishers, “Oh, I don’t want to sign that”. It would be simpler than this. It’s would just be “There is no copyright to transfer”.

What would publishers say?

What could they say?

“We only publish public-domain works if they were written by U.S. federal employees”?

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