ally S| aking Self-Plagiarism or ‘Fair Use? ee long, sideways Ineerly romantic in it with the inner. sel. Many Communications readers are also authors who, front time t time must decide whether itis fair to reuse portions of their previous writings in subsequent articles or reports, This ean sometimes be a legal question since many publishers, especially. in technical fields, require public ppsrights asa condition of Furthermore, in the U.S, ‘own copyright interests in articles or reports written by employees within the scope of their employment. In Other times, the question isan ethical fone. Even if an author has retained all copyrights, there are times when it may be unethical to publish muliple versions of the same article as though: ‘each was a distinct contribution to the livevature in the Field shen this isn't really so. This column will explore the legal and ethical landscape of sell-plagia eT Pamela Samuelson visi and fair ase, Selfsphagiarisnn is sometimes both ankiwfiel aaud anethi eal, Other tines its nethical bat not unkuslul. There are also times when reuse of one’s on material is fain Doth as a matter of kaw and as a mat ter of ethics Although it is posible to infringe a copyright in work you have created the standards of copyright infringe :ment when you reuse your own prose will, I believe, he somewhat different and more generous) than if someone else reused the same quantum of your prose in their works, Courts 2have generally been quite sympa thetic to authors whose subsequent works earlier works except when authors try to usurp markets for their work that have previously been assigned tw someone else Similarly, as a matter of ethies, a ter will less often be consi plagiarist for reusing portions of his or her own previous work than if he for she had reused the same quantum of someone else's prose without bution. Interestingly dresses self-plagiarismy as atm hics, it hay a different and some what more complex favor than if one when one ad tier of addresses it as a matter of law. As in so much of human affairs, there is no firm rule that applies toall Rather, people must exer reusing situations, cise good judgment wher thei much are far more likely to suffer opprobrium from violating commu nity norms than to be slapped with a lawsuit for copyright inivingement We should all be moved to be fair bout reusing portions of our previ fous works out of concern for being good members of our fields rather than because we do not want to have to deal with lawyers and the hassles of litigation My Own Dilemma B technical audiences, 1 grapple with reuse of prose questions quite often Jing a writer for both legal and The content of articles for each subst With a legal Tan take for granted certain legal concepts (such, as summary judgment) that I need 1 explain to technical audiences. On the other hand, lawyers don’t usually understand what algorithm: from the Patent & Trademark ued attempt to distin guish benween mathematical and hon matical algorithms) whereas I can tke for granted that will fe (asis des Office's con know Communications vead exactly what T also feel obliged t0 write mon formally to legal audi to technical ones. So if 1 write an article on the same topic 10 each audience, 1 will need to rewrite a lot of the prose ticle to the style th each of my audiences expects, For nes th to conform the Regally Speaking audiences, I generally have 1 lots. of have foot (sometimes running into the hundreds} to docu- ment or expand upon virtually every jon the legal article my cause of this, when F write articles on al audi i one for a technical audi se es. Be- the same topic, one for a Te ence, each will have a different tone, different level of detail, and some times a different them ten paragraphs or sequences of an be bodily lifted And, in paragraphs that from one article to the other uth, Tift them Oddly enough, the legality of Hitt ing my own prose will depend, in part on which article is written first When T write an article for a law re view, [almost always retain the copy right and simply license the review to publish the artic pledge not to republish it without a formal acknowledgment of the re “usually with 3 View's first publication of the article (Law reviews are published by law schools as nonprofit centers in order to bring prestige to the school and twain very bright students in writing and precision in citation. So they don'tcare very much about copyright assignments.) If [ rewrite a legal arti ele for a technical audi some parts of the first article, L obvi ously don't have to worry about get- ting permission. Ivinstead I first write for a techni cal journal, I don't own the copyright for the article because T have to assign it in order to get the anticle published (Many | journals are pub lished by profit-making institutions. Because they undertake the expense of publication and distribution, they want to control the market for the works they publish, and so require copyright assignments profit publishers of tech suich as ACM, will te signments of copyrights asa mat course.) This means that reuse of my prose from a technical article legal article at least requires that 1 face the permiss ‘On at least one occasion, when I intended to convert a technical article into a law review article with rela tively few changes—adding foomores and one substantive section the article hhadn’t had before—I asked the tech nical journal for permission to repub: techni Even non. H 10 require as: icles, lish the article, It was granted on con: dition that the technical journal's first of the article be acknowl edged. Ifmy plan instead isto reuse a relatively pars. graphs— particularly as to descriptive in a second article that nsive reworking or substantially: different text, 1 don't think twice about the borrowing. If Pye reused more than a few para footnote publicatio small number of graphs, [usually drop. the article where the prose first ap peared. This way, the first publisher gets credit it deserves and Lam giving the readers pointer t another source they might want to investigate if they are interested in the issue Twill come back to ethical consid erations after reviewing right law has dealt with self-phagia ism claims, Copyright and self-Plagiarism (On the specific issue about how much reuse of one’s own work is legally ac ceptable, it is more difficult 10 get guidance from the copyright ease lave than one might expect because au thors have so rarely been sued for in fringing copyrights they have as his, in itself, is that the phenome tex! signed to others, noteworthy give hon of authors s far from Seligman (decided in 1914) seems 10 be the only ease in U.S copyright history in which the owner of a copyright won an infringem waist a sell-plagiavist Gross The defendant in that case had posed lawsuit nude model in a particular manner and had produced a photograph of her which he entitled Youth.” Thereatter, he sold the pho- tograph and his copyright interests in it to the plain posed the way and produced a nearly identical photograph. Apart from changes in the model's body bees ow two years older, the new photo- graph mainly differed from its prede it featured a smile on ¥y between hi race of fs, Two years later he me model in the same her lips and a che teeth. The new work was entitled “Cherry Ripe tried 1 commercially distribute the second photograph, the p of the first copyright sued for in- fringement. The co Mier the defendant chasers observed thatLegally Speaking The prudent thing to do when considering reusing code that belongs to someone else, even if you wrote it yourself, is not to reuse any of it. the photo to make further photographs of the same young woman, but having been paid once for his copyright interest in the “Grace of Youth” photograph, it ‘was unfair for the defendant to try 10 reap commercial rewards for this cre ation a second time by marketing « photograph so similar to the first that consumers would perceive it to be a copy and a commercial substitute for the first A very recent alleged self-plagia rism dispute was the unsuccessful pher was certainly free lawsuit brought by Fantasy 1 ‘music publisher, against the musician John Fogerty. Fogerty came to fame ‘as a songwriter for the 1960's rock group Creedance Clearwater Revival His songs for this group included “Run Through the Jungle,” rights which were sold to Fantasy. Fourtee years later, Fogerty wrote another song entitled “The Old Man Down The Road,” and Warner Brothers recorded his performance of it. Fan- tay sued both Fogerty and Warner for copyright infringement alleging that the second song infringed its rights in the first song because of sim ilarities in the melody. The jury ruled in Fogerty’s favor: In a few other unsuccessful self: plagiarism cases, decided by judges instead of juries, one can detect in the judicial opinions written about them some sympathy with the plight of an author who returns to a familiar theme. In the most famous. self plagiarism case, Dashiell Hammett was sued for copyright infringement because, down on his luck and past the glory days of his career, he had reused Sam Spade and other charac- ters from “The Maltese Falco scripts for a series of radio programs More than 20 years earlier, Hammett had sold the rights to make motion pictures and other productions based upon “The Maltese Faleon” to Warner Brothers for $8,500, Warner complained that Hammeu’s scripts interfered with rights conveyed under this contract. The court re- solved the dispute in Hammett’s favor by construing the Warner Brothers narrowly. The judges took into account that authors of detective fiction often reuse char acters in subsequent works, Unless there was an unequivocal trans! all rights in a particular character any doubt should be resolved in Hammew’s favor; $8,500 was not enough, the judges thought, to indi- cate Hammet’s intent to give up all rights in the characters he'd created in the book. A more mundane ease in which @ literate judge attempted to elevate to a higher plane was Schiller & Schmidt us. Nordisco Corp. S&S sued Nordisco for copyright infringement because @ former S&S employee had set up Nordisco as a competing office supply business and had laid out portions of Nordisco’s catalog in much the same manner as he had done when he'd been in charge of the S&S catalog The judge perceived the similarities as unsurprising: "We might..suppose the evidence of copying of the layouts compelling were it not that the crea tor of the copyrighted work and the infringer were the same person. Al: though one can and often does copy one’s own work (and so may be an infringer ifone doesn’t own the copy- right in i, one is also more likely to duplicate one’s own work without copying that another person would be likely to do so. If Cezanne painted two pictures of Mont St. Vietoire, we should expect them to look more alike than if Matisse had painted the second, even if Cezanne painted the second painting from life rather than from the first painting.” Along similar ines, someone faced with the task of laying out an arrangement of items he had previously worked with will naturally be drawn to the same ar rangement a second time without necessarily copying from the first The same person doing both tasks will generally not perceive the same of range of alternative possibilities that a host of other people might. The closest thing to a seltplaigia rism dispute in the software copy right case law is the Brown Bag Soft ave as. Symantec case. Curiously, ndant was not the alleged self , but rather the compan wad! bought rights in a prograt from the same person who had previ ously written the program the plain. tiffowned. John Friend wrote an out- lining program called “PC-Outline, rights in which were sold to Brown Bag, He subsequently wrote another ou program called “Grand. view,” rights in which were sold to Symantec. Brown Bag sued Symantec for copyright infringement because of the similatities in the faces and features of the two pro grams, The court decided that the similarities were largely attributable to the fact that the two programs per formed the same functions and ruled that no infringement had oce The selfsplagiarism issue didn't get discussed in the opinion, This, believe it or not, pretty much exhausts what U.S. copyright law has to say about self:plagiarism. Of course, more self-plagi may have been brought and settled Some publishers who could against a self-plagiarist may decide not to because there's not enough money at stake to justify litigation, A Different Standard for Author Reuse? Some copyright lawyers might asse that even though there selt-plagia are plenty of cases in which plagiarism has been found to be an infringement. A self plagiarist, they might assert, will stand in no better position than any other plagiarist when facing copy right infringement claims, 1 would disagree, at least in contexts othe than employer/employee copyright disputes. Ifa ste nger reuses two pages ofsomeone's prose in an article and claims 10 be its author, copyright in fingemes ly be found. If, however, the author reused the same two pages in a article because, for instance, it con cisely baseline work which readers needed to stand in order 10 compreh breakthrough being reported in the second a Imost inconceiv able that copyright infringement would be found, even if the author had assigned his or her eopyr the article to the first journal. Copy Fight infringement would be even less likely if the person did not receive any compensition for publi th id if the work was in field in which ic was virtually impos: ble to get any article published with ing copyrights t the jour nal as a condition of publication Although it seems nor to have been raised in-any of the sell-plagiarism ceases, copyright law’s fair use defense: would likely provide a shield against \y potential publisher claims of copyright infringement thors who previous works, Under U.S, law, four generally considered making determinations as to whether a reuse of copyrighted material is fain or infringing. ‘Those factors are: the purpose and character of the defen dans use, the nature of the copy righted work, the amount cake the potential for harm to markets for the copyrighted work arising from the defendant’s actions. ‘The more and research, oviented the purpose of the reuse, the more factual (as compared with fan: fia or artistic) the nature of the copy- righted work, the smaller the qua relation to the work as a whole, and the lower the potential for meaningful economic harm to the ‘owner of the copyright arising from the defend summarized some ein ised_portions of their faciors a tum reused i 'S-aetivities, the likely author reuse of his or h ‘own material would be considered fair use One reuse see wo that_ may be fairly typical for readers of Commeni- ations is borrowing some paragraphs bora page oF two from a previous art cle in 3) subsequent research paper where the author was not compen sated for publication of either article egally Speaking In making informal inguivies about ism among friends and he self pla colleagues, I have heard reports that some people use a “30% rn rule of thamb that one re more than 30% of one’s prose in an. other a a's OK). This strikes me ay a grey zone, and L would cer tainly not recommend any: greate reuse than this, and very likely would recommend less than that, has sought pet Iris surely true would be inappropriate as applied t© a book an author agreed 10 publish with a particular firm alter having ned copyright in a first book c other publisher. ‘The market for the first hook would likely be im paived by the author's reuse of 30% of the text of the first book in the sec- fond. In such a ease, would likely be liable for copyright infringement unless the first. pub: lisher hal accedledl to the seconel pub Tication, Even more certain would be the likelihood of infringement if a pro- grammer reused, at a second firm, 0% of the code written while em ployed at a first firm, particularly if the two firms were direct competitor in the marketplace. “The prudent thing to do when considering reusing code th belongs to someone cbse even if you wrote it yourself, is not te reuse any of it, ‘The same advice (no. reuse) would apply in-many other Instances. in which an employer owned the copyright in works created by its employees, Law, Ethics, and Plagiarism Upon vellection, one can detect chat copy cent view of the sin of plagiarism ( consequently of sell-plagiarisin) 1 does ethical thought, Indeed, copy- right discourse varely uses the term “plagiarism.” A far more common pejorative i ght cases is the ie law has a somewhat differ ul term “pirate,” which obviously ha quite a different connotation than “plagiarist. The sin in plagiarism to which copyright law responds is chielly an economic one: the infringer has de- prived (or threatened to deprive) the ‘owner of the copyright of some of the financial benefits that owning. the copyright is supposed to bring. As a consequence ‘eam seck as damages whatever profits were lost as a result of the infringe ment. The copyright owner can also the copyright owner get a come award fo receive from the infringer any of the later’s profits that are attributable to the infringe ment. [there is likelihood of recur rence of the inl¥ingement, the copy right owner can generally also get a court order to stop any farther in fringing activity. And the costs of the litigation, including attorney fees ally he recouped from an infinger if one wins a lawsui The sin in plagiarism to whieh eth ies responds is, by contrast, mainly a species of misrepresentation. The wrong in plagiarism lies in misrepre senting that a text originated fr the person claiming to be its when that person knows very well th tho it way devived fom another ree, knows also that the reader is kely to know this, and hopes tw henelit from the reader's ignorance The phigiavist ies w take unde served credit for an accomplishment that belongs to another person. And i there is.a second sin in plagiarism from aan ethical standpoint, itis the sin of laziness. I isn’t all that difficult to say something in one’s own words, Ione hasn't done the work necessary reecive the praise he or she seeks, fone shouldn't get it, The reason that academic munities react so negatively t0 plagis ism is that if this practice is not sharply sinctioned, pl undermine the commen dence in the integrity of the edifice of knowledge that lies at the heart of academic and research enterprises Icis worth noting that the extent of plagiarism that can cost someone loss of tenure ora precipitous drop in one’s standing in a research field be cause of its violation of commu norms will often present to little po: nto be re ists will ial fow economic a copyright infringeme y arise from copying facts or ideas from someone else's work which copyright law would not pun ish, for copyright protects only the "expression" ina work, not its facts or ideas. This too illustrates how iff ent are the perceived sins of plagi rism from the standpoint of kaw andLaw, Ethics, and Self-Plagiarism Legal and ethical attitudes toward sell-plagiarism are likewise somewh, dlistinet, In regulating selfsplagiarism the law will ehielly be concerned with whether the economic interests of the copyright owner are being unduly interfered with by a second work that incorporates some of the previous work. If so, infringement will be found; if not, infringement is unlikely. From an ethical standpo misrepresentation of selfplagiavism subile than that of pla n, but it is still present. The sell-plagiarist does not, of course, misrepresent the identity of the au thor of the work, but implies that the work the reader currently sees is new and original and not copied from previous work. Just as the plagiarist breaks community norms by claiming someone else’s work as his or hi own, the self-plagiarist may violate community norms by claiming a work as anew contribution to the field when it isn’t ‘One reason that many professional journals have peer review procedures for judging whether to accept articles for publication is to. guard multiple publications of the same material by the same author. Journals rely on those ar with the litera ture in the whether there is enough new, original and impor- tant material to justify publication of the submitted piece. ‘This may work less well than the journals would hope [1]. Journals generally seek to cultivate a reputation for bringing important new contributions 10 the reputa field. If « journal acquires tion as a recycling bin, subse are likely to fall off, and innovative authors will not want tw publish there. For some of the same reasons, many journals req test that the material submitted is original publication, ‘The National Science Foundation takes self-plagiarism so seriously that it has designated not only plagiarism but also self-plagia rat is, mul tiple publication of the same scientific work in more than one jou serious deviation from accepted prac- ‘ces and as actionable misconduct [2]. A selftplagiarist can also m: authors to at Regally Speaking hhim-or herself vulnerable to seathing attacks in later commentaries if oth cers the field ake the time and ble to research previous writings and point out earlier uncited publications that the author had hoped would go unnoticed [3] It is, in truth, a far more complex matter 10 determine what is sell plagia ats fair use than to det what is plagiarism and when is it fair use (almost never) Arnumber of factors ean be cited wo explain, and perhaps excuse, reuse of portions of one’s previous work that ‘would be implausible in a plagiarism context. For example, one might as sert that the previous work needs to to lay. the groundwork for the new contribution in the second work: or that portions of the previous work must be re peated in order to deal with new evi dence or arguments; or that the audi tence for each work is so different that publishing the same work in different places 1 toallow the mes- sage t0 get out; oF that itis am ac- cepted practice in a field to do partic- ular kinds of republications. (ue., turning a conference paper into 4 journal article or a book chapter); or that an author will sometimes. say things in much the same way without realizing it because that is how the author thinks about the issue; andiox the author thinks he or she said it 0 well the first time that it makes no sense to say it differently a second me. (Even so, it may be good profes sional conduct to cite the earlier work when reusing portions of it. cersare less ikely to be upset by a litle reuse if they can get some credit by the citation.) When I reuse portions of my prose from a technical to a legal article or vice versa, [tend to rely on the diller- cent audience rationale, Techies don’t read law r be restated in order jew articles, and lawyers don't read technical journals. So if 1 reuse a little prose from one place to another, it is both a matter of econ- omy and of furthering serving as a bridge between the tech: nical and legal communities on issues of law that affect computing profes: sionals. On the other hand, ay intelli- gent agent technology improves and comes to be used by by computing professionals this justi- goal of no longer be as persus: hhave access to the other's liter ways that, for the most part, they do not today Conclusion As bad as plagiarism and sell-plagia rism can be, we should not forget that reuse of creative material is: some- humans have been doing for nds of years andl is not ah Dad thing. Our culture enjoys. the familiarity that reuse can sometimes bring [4] ltde sel:plagiarism neve ure’ anyone. As George Bernard Shaw once said. "I often quote my- sell. Ir adds spice to the conversi Acknowledgments My thanks to Jonathan Grudn, for the suggestio and for articulating some of the issues with which it might grapple and to. Ann Okerson for bringing some ma terials on this subject to my attention to write this column References 1. Peters, DLP and Ceci, S.J. Peer-review practices of psychological journals: The Tate of published articles, submitted Behastoval Brain Se 3, 1ST (Ju 2. Anderson, R. M. Th men’s rol federal govern in regulating misconduct in ic and technological research, J. 5, 121 (1988), 3. Brogan, M. L. Communic ing ide: The polities of scholarly publishing College & Research Libraries, 3, ABS ‘Sept. 199), 4. Editorial. Summer recycling. Christian Seience Monitor. July 29, 1905, mela Samuel 1 profor of ta he Une nat of Pugh Sh La