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The following case was sent by a reader of the Anthropology Newsletter:
"The following incident took place a few years ago, and I am still not sure that it was handled correctly.
"I was teaching a course in my specialty and ordered a newly published text. In the course of the semester, I discovered to my dismay that one chapter of the book consisted of large portions of a paper I had published several years earlier. Although the article was cited at the beginning of the chapter, the verbatim passages were not enclosed in quotations, and included several pages of my article.
"I wrote to the publisher, and received a somewhat cute letter in return, asking if I would let a little thing like plagiarism stand in the way of using such a nice text. I then turned to the AAA, since they seemed to hold the copyright on the article. But the holder turned out to be the Regents of the University of --------. The Manager of their Rights and Permissions Office at the University Press advised me that there was no infringement of the copyright law, since the appropriation of my prose fell within `fair use.' However, he advised me that there had been plagiarism. He suggested I send the evidence to the editorial board of the publishing house and to the department chair of the guilty author. But I wasn't out for vengeance; I simply wanted credit for my own prose. I asked for a written apology from the author and for assurance that my work would receive quotation marks in any subsequent edition of the book.
"The dilemma is, what does an author do when her material has been plagiarized? What is plagiarism and what is copyright infringement? I wonder how many other anthropologists have confronted their own prose under someone else's authorship."
George Spindler, Stanford University and University of Wisconsin:
In my experience as an editor of more than 150 case studies, five collected volumes, and the American Anthropologist, I have never encountered a case of outright, intentional plagiarism, though I have heard accusations of it and have acted as a third party in the settlement of it.
In one instance (all shall remain anonymous) a prominent senior anthropologist accused an author of plagiarizing his hard-won demographic analysis of a tribal population in a remote geographic area. As it turned out, the author in question had acquired the data from the same source as the student--a colonial office.
In another case a senior anthropologist accused a junior colleague who did fieldwork with the same people of plagiarizing his description of a certain ritual. As it happened, both had observed the ritual performed by the same small group, though at different times. The ritual was repetitive and the two anthropologists were good ethnographers. There was no plagiarism, despite the close parallels between the two accounts.
A third case involved a review of a just-published textbook. The reviewer complained that the author of the text committed near-plagiarism, at least, because the text followed certain sources too closely, even though all sources were cited, and plentifully. The reviewer modified his statements in the initial draft of the review, removing all suggestions of plagiarism.
In a fourth case an anthropologist engaged in a federally supported research project published his findings in a xeroxed volume with limited professional circulation. A few months later he was surprised to see several pages of his prose replicated in another similar report. Words had been changed here and there but it was clear that the pages were essentially replicated. After some unsatisfactory exchanges on the matter, he submitted a brief statement for publication, exhibiting his original alongside the plagiarized material. His statement was published. The person responsible stated that he was unaware of the source of the material submitted for the volume he circulated by one of his junior co-workers on the project.
I do not believe there is much outright, intentional plagiarism in our field, or in academia in general. When it happens it is usually inadvertent. But the penalties for inadvertent plagiarism can be heavy, as for one recent dean who resigned because a text for which he was responsible included, in a chapter he did not write, some inadvertently plagiarized pages. The reviewing committee appointed by the administration agreed that the plagiarism was inadvertent, but censored him for carelessness unbecoming a scholar.
It seems to me that when apparent plagiarism does occur, the victim should first contact the offending party, request an explanation, and secure amends in the form of a public acknowledgement and appropriate notice in future editions or printings, if there are any. If appropriate amends are not forthcoming, the publication of the documented instance in a professional journal seems justified and desirable. Such publication will alert others to the problem and to the penalty for even inadvertent plagiarism--disgrace--if not amended.
Our prose, clumsy or smooth, piercing or pusillanimous, is our visible capital. We don't have much else. Students take notes in our classes, and sometimes years later ideas we never published spring forth in their writings. They themselves think what they wrote was original, their own creation. We hear each other's papers at meetings, we engage in discussions, we participate in panels and symposia. Our ideas are formed from this interaction and we contribute to forming the ideas of others. This is the way it should be. No one wants to shut down the exchanges or turn off the eager students. Ideas are evanescent. They flow and mingle. They cannot really be owned, despite strenuous efforts to make them property. It is a more successful effort in patentable ideas, of course, but even there, ambiguities exist.
Our published works, or words written but not published, are finite and discrete. They are property. They can be stolen and when the crime occurs, it should be, if possible, set right, and if not, publicly noted and censored.
Michael J. Lowy, a legal anthropologist with a general law practice in Hayward, California, who also teaches anthropology, administration of justice, and paralegal classes at De Anza Community College, Cupertino, California:
The dilemma, as posed, generates two types of questions: one set appears to be legal, the other appears to be moral. In this situation, as in so many others, law and morality may reflect two quite different sets of concerns.
I believe the differences between copyright infringement and plagiarism is based on the differences between the common law right, which an author possesses prior to publication in the exclusive ownership of her or his original work, and the statutorily created right an author possesses, after securing a copyright under the federal law or by general publication, in the exclusive ownership of her or his original work.
One of the remedies available for violation of an author's common law right is a tort action for plagiarism. A violation of an author's copyright is called infringement. A source of confusion is the fact that, as in the dilemma, people use the term "plagiarism" to denote "copying" without regard to whether or not the original work copied is protected under the federal copyright statutes.
The 1976 Copyright Act has modified previous court decisions concerning the legal doctrine of "fair use." This doctrine limits the exclusive rights by the owner of a copyright. Among the factors used to determine whether or not a particular use of copyrighted material is "fair" are: the purpose of the use and the impact such use has upon the value of the copyrighted material. Under the present set of facts, the manager probably concluded that the author's paper was of a scholarly nature not likely to be decreased in value by the "use," and furthermore, that the purpose to which the copyrighted material was put was educational. It is possible that the manager was incorrect, since the "use" was for a commercial nature and the amount "used" from the copyrighted material was substantial. The manager may well have decided that the cost of attempting to enforce the copyright was just not worth the potential benefits, if any, to the press.
Authors who transfer the ownership of their copyrighted original work may not realize that they can negotiate retention of their right to sue for infringement. In the dilemma, if the author had retained this right, she or he could have tried to enforce the copyright on their own. So much for the law.
The moral issue, in my opinion, is that some of the nonlegal remedies are perhaps more immediate and ultimately more harmful to the "copier" than the legal remedies. The author implicitly recognizes this, when she states, "But I wasn't out for vengeance." Bringing the matter to the attention of the editorial board might adversely impact upon the textbook author's future ability to publish at that press, and to resort to the department chair might affect the author's future promotions and his or her scholarly promotion. I believe that the offended party took the proper action under the circumstances. The legal remedies are too slow, uncertain, and costly. The initial nonlegal remedies are too quick and potentially too harmful. What the author of the article wanted was the professional recognition she deserved, not the professional ruin of the textbook author.
The dilemma points out a need for a mediation service within the AAA. Apparently the past formal grievance procedure proved to be unwieldy and is being discarded. However, the availability of a structurally neutral and well-informed third party might be useful to help parties in such situations resolve their differences without the delay, expense or destructiveness of the currently available remedies.