Muddled waters indeed, but only because Duncan seems to totally
misunderstand what IP rights are, and with that the point of the
article. They are NOT something the university can or cannot grant to
its students because they "deserve" or "merit" them, or something that
the university should respect out of moral considerations. If students
have them at all, they have them in virtue of the law. No clear court
decisions yet, but I consider it likely to be the case, as the law
gives as a default rule IP to the author, and PhD's give a powerful
precedent. Observing or not observing these rights is not something a
university can "choose" to do. Paradoxically, the only type of person
who would buy Duncan's analysis is indeed a die-hard Marxists, who
thinks that "property" is somehow depending on intrinsic worthiness
(use-value)of an object, and not just the exchange value in the open
market.
Reference to university rules and regulations is largely besides the
point. Universities may have had the right to create formal laws in the
middle ages, they lost it with the birth of the modern nation state.
They cannot through their internal rules create IP rights they don't
have, not any more than they can decree through internal regulations
only that they own their student's cars. Where the law does not give
the university ownership, they can only regulate EXERCISE of IP rights
through explicit contracts with their students, within the confines of
the unfair contract terms act, and only for the time students are within
their jurisdiction.
Equally besides the point the reference to IP rights of staff. The law
always had an exception in favour of the employer: if work is created in
the course of employment, the commercial aspect of the copyright can be
ascertained by the employer - after all, he pays for your time. Students
are not employed by the university, nor paid for their work (quite the
converse) so no chance to use this as a legal argument. Even if the
argument would be accepted, it does not solve the problem: staff only
lose the commercial exploitation right, not the "moral rights " which
under the Patents, Designs and Copyrights act are inalienable - that's
why we quote the author, not the university of the author when we put in
references. Universities cannot force their staff to publish in specific
journals, academics can withdraw material from publication if they deem
it inappropriate. The same control over the non-commercial use of their
work would in any case apply to students.
The only reason that this was not more of an issue in the past was the
relative unimportance of IP rights, and with that lack of knowledge. In
a modern knowledge based economy, they are ubiquitous. Our students will
have encountered them when downloading music on Napster type systems,
or when trying to sell Magic swords acquired in online games on ebay.
They will be acutely aware of these rights, and just like any other good
entrepreneurs, claim them when it is in their advantage. And why not,
everyone else does.
Again, Duncan's view that somehow the internal rules and aspiration of
the academic community can trump these individual rights is something
that would resonate with a good old-fashioned Marxist. Robert Merton,
someone not suspected of left wing leanings, did indeed describe the
"old" university as an institution in which knowledge is produced in a
"technically communist" way. As a solution to this specific problem,
this rose tinted hankering to some glorious past does diddle all. You
can dislike that students have IP rights, you might think they don't
merit them, you can wave the red flag or throw a tantrum, but non of
this is going to change a thing.
Where does this leave us? Not everything that helps to "set, monitor and
maintain the standards" will be legally permissible - after all, I
cannot break into my students flat and pilfer through their notes, even
if this would help detect plagiarism. Academics (or administrators) who
have to decide to buy Turnitin have to assess if it is likely to deliver
what it claims it does, in a way that does not open the university to
litigation it is bound to loose, and in an efficient way. IP rights, as
they are, may just make this impossible. At the very least, you would
need a carefully drafted contract, signed by the student, that gives
permission to use his work in this way. You can make this a condition of
acceptance. If you haven't such a contract, tough. Put it in place and
use Turnitin for the next cohort. Even with such a contract though
students will most probably regain the right to withdraw their consent
once they have graduated. To the extend that it is essential for the
working of Turnitin to have a database of a large number of past papers,
this may just kick out the bottom of their business model.
Of course, you may well decide that the administrative burden is
disproportionate to the likely benefits. A radical thought that: instead
of relying on detection software, make the academics do their job and
set questions that cannot easily be plagiarised.
Burkhard
Duncan Williamson wrote:
> Mike,
>
> What you are saying is understood: our Universities and Colleges would
> be poorer places without the talented people you describe. However, the
> train of thought you are leading us down is muddying the waters rather
> than clearing them.
>
> Institutions must already have, surely to goodness, rules and
> regulations in place covering the ownership of intellectual property. It
> certainly used to be the case as it was with staff time and private
> consultancy.
>
> I felt the article that started this entire series threads off is at the
> underbelly end of the potential ruination of academic excellence. The
> job of the academic is to set, monitor and maintain the standards
> everyone here seems keen to protect. Arguing over and giving exceptions
> to the intellectual property debate in the context of plagiarism really
> is biggest of big red herrings. Let's not link the two in such as way as
> to hand a get out clause to those who seek to profit not from excellence
> but from cheating.
>
> I am not accusing you of having done any of the above Mike; but you know
> I can be very direct without wishing to point fingers at individual
> contributors.
>
> Duncan
>
>
>
> *On Fri Sep 29 0:03 , PLAGIARISM automatic digest system
> <[log in to unmask]> sent:
>
> *
>
> Skip repetitive navigational links <#skipnavlinks>
>
>
> PLAGIARISM Digest - 27 Sep 2006 to 28 Sep 2006 (#2006-76)
>
>
> Table of contents:
>
> * More tail wagging <#S1>
>
> 1. More tail wagging
> * More tail wagging <cid:1283@JISCMAIL.AC.UK> (09/28)
> *From:* Mike Reddy <[log in to unmask]>
>
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