Plagiarism and piracy: a publisher’s perspective 259

Learned Publishing, 19, 259–266

Plagiarism and piracy: a publisher’s perspective
Kevin Taylor
LEARNED PUBLISHING VOL. 19 NO. 4 OCTOBER 2006

Plagiarism and
Plagiarism and piracy are two different
aspects of copyright infringement, and
broadly speaking we can define plagiarism as piracy:
the appropriation of another person’s words
or ideas without proper permission or
acknowledgement, while piracy refers to the
large-scale reproduction of whole books,
a publisher’s
whether in print or electronic form, to sub-
stitute for legitimate copies. I will say a bit
about plagiarism first, and how a publisher
might understand that term, before moving
perspective
on to look at copyright infringement more
generally, including electronic piracy, and Kevin Taylor
finally to address the question that I think is
always implicit behind discussions of such Cambridge University Press
issues at the moment: can copyright and
publishers survive in the electronic world? © Kevin Taylor 2006
Plagiarism is a term with a long history, ABSTRACT: Examples of ‘plagiarism’ and ‘piracy’
and it is still the term of choice for contem- are explored in the context of copyright legislation,
porary reporting of copyright infringement, and the practical role of ‘fair dealing’ is examined.
as we have seen recently in the Dan Brown The article shows how a tension exists at the heart
case where even the popular newspapers of copyright: that between the ‘right of protection’
have used the word ‘plagiarism’ in their and the ‘right of communication’. It argues that this
headlines as a pejorative that they assume to tension produces a business dynamic which
be widely understood. Yet ‘plagiarism’ is a publishers can exploit to their advantage and which
slippery notion in copyright law, and lawyers means that piracy (even, and perhaps especially, in
seem on the whole to want to steer clear of the electronic realm) can be regarded more as an
it. If you try finding ‘plagiarism’ in any of the opportunity than as a threat.
leading textbooks on intellectual property
and copyright, you will discover that it just is
not there. In the four books I looked at,
comprising some 2,700 pages, ‘plagiarism’
received just one index entry which was a
reference to its Latin origins. In law at least,
it seems that ‘plagiarism’ might not be a par-
ticularly helpful concept and that the law
books want to talk about more clearly
defined notions such as ‘copying’, ‘abuse of
intellectual property’, and so on.
On the other hand it is perhaps the very
slipperiness of the term ‘plagiarism’ that can
make it quite useful as a catch-all. It
bestrides copyright and moral rights and can
be used as loosely or as precisely as befits the A version of this article was first presented as a talk at
the ALPSP Seminar ‘Plagiarism and Piracy: Copyright
case in which it is being applied. It rings out Infringement in an Online World’ in London, 10 May
as a pejorative, yet when the defendant is 2006. Kevin Taylor

LEARNED PUBLISHING VOL. 19 NO. 4 OCTOBER 2006

 Plagiarism and piracy: a publisher’s perspective
found to be wrongly accused it immediately
acquires an opposite sense of opprobrium,
turned back on the accusers. Dan Brown was
cast in a very bad light initially as the details
of his dependence upon Leigh and Baigent’s
1982 book The Holy Blood and the Holy Grail
began to emerge in the recent case; but at
Brown’s vindication at the end of the Royal
Court of Justice trial when he was found
innocent of plagiarism it was the accusers
whose motives were suddenly called into
question, and who now face a massive legal
bill including a £350,000 contribution
towards Mr Brown’s costs. Renewed interest
in and sales of their own book might of
course help them in that regard, and the
self-publicizing aspect of their motivation in
bringing the action against Brown did not
escape the judge.
In his summing-up, Mr Justice Peter Smith
found that Brown ‘hugely increases the
available audience’ for the whole genre,
which is to everyone’s benefit including
Leigh and Baigent’s. Dan Brown himself was
then quick to turn his particular vindication
into a more generalized statement about fic-
tional borrowing, declaring that a ‘novelist
must be free to draw appropriately from his-
torical works without fear that he’ll be sued
and forced to stand in a courtroom facing a
series of allegations that call into question
his very integrity as a person’.
We might spot the slippery word in that
sentence. It all turns on the adverb ‘appro-
priately’. And that Dan Brown’s borrowings
should have been found ‘appropriate’ was of
course coloured by some of the quirkiness of
his particular case: the extraordinarily high
sales profile of his book; the reluctant (or
pseudo-reluctant) celebrity of the author;
the fact that his wife and not he did the
research and purloined the facts from the
source; and the cheerfully sly use of an ana-
gram of Leigh and Baigent’s surnames as the
name of a villainous character in The Da
Vinci Code (‘Sir Leigh Teabing’) – an ana-
gram devised presumably by Brown’s wife,
since Brown himself persists in claiming that
he had no knowledge of the 1982 book from
which one of his central ideas was lifted. If
the device of having these ideas expressed by
a character named anagrammatically after
the authors of the original ideas can be
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261
deemed a form of ‘sufficient acknowledge-
ment’ (and there was no other more explicit
acknowledgement of the source in Brown’s
book), then that is perhaps an outcome only
in keeping with the oblique and coded
nature of The Da Vinci Code itself.
The prominence and peculiarities of the
Brown case have made it entertaining, but
one of its longer-term effects will have been
to broaden by precedent the whole notion of
the ‘appropriateness’ of an act of copying –
or, to pin it down legally, the notion of what
might be meant by fair dealing or fair use.
Here we are getting back into more familiar
territory for academic publishers. At Cam-
bridge University Press we grapple every day
with fair dealing and fair use as we try to
determine what we as publishers can repro-
duce within our own books without the need there are no
to pay heavy permissions fees, and again the
very vagueness and elasticity of those con- scientific
cepts in copyright law tends to be to our measures here
advantage. What constitutes fair dealing on
the one hand and plagiarism or copyright-
infringement on the other is very context-
specific. There are no scientific measures
here. One does not just count the number
of words or ideas copied and claim in-
fringement when it tips beyond a certain
threshold. All sorts of other circumstances
are in play, including the purpose to which
the words or ideas are put, the nature of the
acknowledgement to the source, and the
practical economic effects of the copying. In
the USA, the Supreme Court has clarified
that the amount that counts as fair use
should be evaluated qualitatively as well as
quantitatively. Quotation of the majority of
a poem might still be ‘fair’ if every single line
is then subjected to close critical comment.
On the other hand, it was ruled that extracts
of only 350 words from President Ford’s
book-length memoir were not ‘fair’ because
they addressed what was ‘essentially the
heart of the book’, dealing with the pardon
of President Nixon.
The outcome of Google’s defence of its
wholesale scanning of in-copyright works
without permission as fair use under US
copyright law will be extremely interesting to
watch, and it will have economic implica-
tions no doubt; though whether these will
favour rightsholders on the one hand or
VOL. 19 NO. 4 OCTOBER 2006
262 Kevin Taylor
online providers like Google on the other
remains to be seen.
Talk of economic effects brings us squarely
into one of the arenas in which copyright
operates: that of monetary return. Indeed a
materialist history of copyright would prob-
ably be the dominant one. Throughout the
eighteenth century copyright evolved as a
protectionist framework to the financial
benefit of the stationers’ companies, and still
today it is possible to bring most arguments
about copyright-infringement down to eco-
nomic causes and effects. If a work is illegally
copied or distributed, whether through pla-
giarism or through the wholesale pirating of
copies, then the legitimate market for that
work is effectively devalued. If, for example,
a science textbook is scanned to PDF by an
the tension enterprising student who then sells copies of
between the PDF at a knock-down price on eBay, it
may fairly be argued that sales of the legiti-
protection and mate book will be thereby damaged, to the
communication financial detriment of both publisher and
author. If a Cambridge ELT book is pirated
in China, so that one of our largest potential
markets is flooded with hundreds of thou-
sands of cheap, illegal, locally printed copies,
the financial loss to us is tangible. And if the
ideas of an academic philosopher are copied
in a journal article by another philosopher
without acknowledgement, this represents
an effective loss of capital to the first philos-
opher, in the sense that an opportunity has
been missed to enhance his reputation and
career prospects by publicly attributing his
ideas to him in a way that would seem only
fair. To this extent, plagiarism and piracy
may be seen as agents of economic devalu-
ation, and regulation against them as a
means of protecting the legitimate economic
interests of the rightsholders.
Yet in all three of these examples there are
counter-currents in play, and these point
towards a different aspect of copyright, the
aspect that has its origins in the French
Enlightenment and is more to do with the
creative right of the individual to commu-
nicate his or her ideas, a right which
transcends, or is at least quite apart from,
the economic context, and may be regarded
rather as an aspect of the freedom of expres-
sion.
To take the science textbook example. I
LEARNED PUBLISHING VOL. 19 NO. 4
have encountered several recent instances
of an academic scientist encouraging the
free electronic dissemination of his book, on
the grounds that his mission is to reach as
many readers as possible, no matter how this
is done. One Cambridge author actually
wrote to me giving a list of websites from
which free PDF versions of his textbook
were available for illegal downloading, saying
that he himself welcomed and applauded
this activity, even though he assumed that
Cambridge would not take the same view
and would want to take steps to stamp it
out. Here we see manifest the tension at
the heart of copyright: the tension between
protection and communication. While rec-
ognizing his legal responsibility to alert his
publisher to infringements that were to both
our and his financial detriment, this author
was also flattered by the idea that his work
should be considered worthy of widespread
free dissemination and pleased to think that
it would be distributed so widely, even if this
meant less money for him. I should perhaps
add that this was a scientist with an estab-
lished academic career and salary, and not
someone who makes a living out of his text-
books. Nonetheless there is a tension there,
and it is perhaps the same tension that we
see in the debate around the open access
movement in the journals world.
Turning back to my second example, the
ELT book that is widely pirated in China, we
might also detect a tension in that scenario.
The reports we regularly hear of copy-
right-infringement in China, in both print
and electronic form, can seem very alarmist.
But they might also make us consider the
question of whether piracy is best seen as
threat or as an opportunity. For if in every
threat there is an opportunity, what does the
scale of piracy in China say about the poten-
tial demand for our products? Something
very positive. And if one-tenth (let’s say) of
the sales of a given book in China are cur-
rently represented by legitimate business,
and nine-tenths are illegitimate, then by
making inroads into just one further tenth of
those nine-tenths, in other words by legiti-
mizing just 11% of the illegitimate market, a
publisher can double their sales, moving the
legitimate market-share up from one-tenth
to two-tenths. And at a time when the
OCTOBER 2006
 Plagiarism and piracy: a publisher’s perspective
Chinese government is taking very active
measures both to control copyright-infringe-
ment and to encourage trade with foreign
publishers, this may not seem like an un-
reachable goal, even in the short to medium
term.
Looked at this way, there is a sense in
which piracy as an index of demand is poten-
tially quite a positive measure for publishers,
the challenge then being to convert illegiti-
mate business to legitimate business. Indeed,
the more piracy the better, as long as we are
operating in a context in which it is always
possible to legitimize at least a small part of
the illegitimate market. And the publishers
who are flattered by having their works
pirated on the largest scale will be the ones
in the strongest positions. It means that
their brand is recognized, the pirates having
already done some of the work of creating
that recognition, even if within a devalued
context. On this analysis, piracy need not be
eliminated at all, indeed it would be a bad
thing for rightsholders if it were. It does not
matter if piracy is increasing, as long as our
ability to legitimize some of the market is
also increasing along with it. Copyright then
ceases to look less like a simple regulatory
tool and more like part of a complex business
dynamic, an ever-changing blend of legiti-
mate and illegitimate markets which trade
off and rub up against each other in energiz-
ing ways.
Does electronic piracy change any of this?
I don’t think so. It is the same dynamic, and
if there is a demand for our books and jour-
nals in electronic form then we must ensure
that we are meeting that demand. We have
of course seen something of that sort within
the music industry, where widespread peer-
to-peer copying has enlarged the market for
certain kinds of e-music, paradoxically creat-
ing legitimate market spaces to the benefit of
those publishers and producers nimble and
inventive enough to move into them.
So how are book and journal publishers
engaging with electronic infringement? At
Cambridge there is no doubt that we are see-
ing a rapidly increasing amount of illegal
e-copying of our publications generally, and
we now have a unit dedicated to proactive
sweeping of the Internet to identify infring-
ing websites. We are working closely with
LEARNED PUBLISHING
263
the UK Publishers Association (PA), making
use of their notice-&-takedown schemes,
and of other provisions such as eBay’s VeRO
(Verified Rights Owner) scheme. We take
heart from the PA’s estimate that 80% of
e-pirated materials are mounted on websites
on a semi-innocent, semi-inadvertent, ‘let’s
see if we can get away-with-it’ basis. A stan-
dard notice-&-takedown letter from a
publisher will often achieve the desired
result, and if it doesn’t an equivalent letter
from a trade association such as the PA or
ALPSP might well do so. An infringing insti-
tution, when alerted to its infringement in
such a way, will usually be ready to remove
the relevant materials from its website.
Sometimes this material is taken down
grudgingly, sometimes apologetically, but
usually it happens. This year Cambridge has
sent such letters in relation to illegally web-
mounted materials to institutions in China,
Korea, India, Pakistan, and Saudi Arabia,
and has monitored the effects with pleasing
results.
The remaining 20% of pirates are the ones
who are more difficult to deal with. These raids and
are the professionals who cover their tracks clampdowns
and are hard to pin down. They change their
identities, update their URLs, and have dis- can achieve
creet ways of reaching their markets. Here, only so much
government action and campaigns co-spon-
sored by publishers and relevant trade
organizations provide the best way of dealing
with the problem in the short to medium
term.
The longer-term way forward for copyright
is, I think, by education and awareness-
raising. Raids and clampdowns can achieve
only so much. Technical digital rights pro-
tection measures (so-called DRM, and the
various forms of encryption it implies) are
useless when the infringement is through the
scanning of paper (as it so often is – rather
than through the hacking of born-digital
files). We need to foster a culture of intellec-
tual property awareness among teachers,
librarians, students, administrators, and
booksellers alike, in all regions of the world,
and this is where the role of organizations
such as ALPSP, the PA, and the Copyright
Licensing Agency is so vital. Knowledge
of and respect for copyright as a concept
can be achieved only through education and
VOL. 19 NO. 4 OCTOBER 2006
 Plagiarism and piracy: a publisher’s perspective
a repeated insistence on its value as a means
of protecting the interests of creators and
maintaining a fair market for the benefit of
the majority.
A publisher’s knowledge of its own rights
and assets in a digital environment is an
aspect of this, and at Cambridge a key part
of our digital policy management is the cre-
ation of a rights metadata system that will
contain detailed information about the
rights ownership of all aspects of our intel-
lectual property. This system will in due
course replace the many different current
forms of recording and managing third-
party-rights information, saving time by
allowing data to be logged and stored in a
consistent standard format with increasing
automation instead of it being entered afresh
each time. This should lead to considerably
less time spent on rights-clearance by Press
staff, to the increased potential to move
rights-clearance out of house to authors and
freelances, an end to wasteful repeated
clearance of rights for the same item, an end
to bulky paper permissions files, the forging
of partnerships with the rights agencies
whom we know to give best value, the ability
to repurpose third-party items efficiently in
different formats and publications, a securer
legal basis for publishing third-party material
due to better rights-tracking, and better
knowledge of our assets and new ways of
exploiting them.
Another interesting area for publishers is
the relationship between copyright and
moral rights, which again arises from the
tension between copyright as protection and
copyright as communication. A common
misconception among publishing editors is
that it is fine to copy someone else’s words as
long as they are sufficiently altered. I get reg-
ular submissions from colleagues in our
schoolbooks and ELT departments who want
me to approve their ‘rewriting’ of a passage
of creative fiction, which they then plan to
reproduce as part of, for example, a reading
exercise within a coursebook. They believe
that because they are altering the words of
the original they are not strictly copying it,
and so are not in breach of copyright. This,
of course, ignores the right-of-paternity and
right-of-integrity aspects of copyright as
enshrined in the Berne Convention. A piece
LEARNED PUBLISHING
265
of writing would have to be rewritten so
extensively as to be completely unrecogniz-
able, even to its original author, before it
could pass the test and not be in breach; and
there would then be no point in trying to
rewrite it: you may as well start from scratch.
The point here is that the original author
has a right to be accurately represented, and
for many authors a misrepresentation or dis-
tortion of their words is a far graver offence
than straight copying-without-permission
would be. This arises often in the journals
field, particularly in science journals, where
a fairly liberal tradition of copying prevails,
so that one science publisher or learned soci-
ety is usually happy to grant permission to
another to reproduce their work free of
charge, provided due acknowledgement is
given and provided the work is represented
accurately. It is when a journal falls foul of
this latter provision that problems occur. I
was involved a while ago in a case where a
medical journal contributor readily gave
accuracy
permission for an article of hers to be re-
published in another journal. It was duly and lack of
reproduced, but with some very slight and distortion are
subtle editing which altered the inference
and import of the piece in key places. Since key aspects of
copyright which
the article was about the use of a certain
drug, and since the editorial board of the too often get
second journal has certain links to the phar- overlooked
maceutical company which manufactures
the drug, questions were asked about the
purpose behind this subtle editing. It came
down in fact to some very small changes in
the grammar and word-order which the
second journal defended as routine copy-
editorial ‘tidying-up’, but which the author
of the piece chose to see as something more
sinister. It may take a linguist or a grammar-
ian to settle such a case once and for all; but
the point is that accuracy and lack of distor-
tion are key aspects of copyright which too
often get overlooked, and proper regulation
of this aspect can be of vital importance to
authors. With electronic cutting-and-pasting
making the direct quotation of other
people’s words so much easier within things
like student essays and indeed journal art-
icles, the problem becomes more acute, for it
is all too easy to mis-cut or mis-paste, or to
‘accidentally’ edit a quotation, or to paste it
VOL. 19 NO. 4 OCTOBER 2006
266 Kevin Taylor
into a context in which it will misrepresent
the author or be in some sense defamatory.
In a world without copyright, who would
keep an eye on all of this? To me, the signs
are that copyright has a secure future, and
most evidence and forecasts would seem to
back this up. Whenever the utopian vision
of a copyright-free world is discussed, it soon
becomes clear that some form of regulation
would at some point be required both to pro-
tect intellectual property and its commercial
interests and to shore up the author’s right
of communication – and whenever the
nature of that regulation is explored it begins
to look very much like copyright! Copyright
is a mature form of regulation that has
evolved over hundreds of years. It will adapt
to the electronic world.
And for centuries, the administration of
copyright has been bound up with the role of
the publisher. While that role is undoubtedly
evolving quite rapidly in some areas such
as STM journal publishing, there most
certainly is a role there. The range and com-
plexity of the issues of protection and
communication that I have been describing
illustrate the need for a publishing service,
distinct from the role of the author, which is
adequate to meet the challenges. In a world
where it is possible on the one hand to scan
a whole book and distribute it globally at
the touch of a key, while on the other hand
people want and need, for good personal,
professional, and commercial reasons, to
conduct intricate debates about things such
as what constitutes plagiarism, copying,
moral rights, and so forth in particular cases
and contexts like the ones I have given as
examples; in such a world there is more than
ever a need for a robust service standing
LEARNED PUBLISHING VOL. 19 NO. 4
between the creative author and the many-
headed consumer. The traditional contract
between author and publisher, where the
author grants certain rights and responsibil-
ities to the publisher in order to receive just
such a service, is one that has stood the test
of time and which will, I believe, survive this
latest technological revolution. The contrac-
tual provisions include the right of the
publisher to publish the work in all forms
and media and its responsibility to protect
the work’s copyright against the wrong kinds
of infringement. The alternative to such pro-
visions is a kind of anarchy – an anarchy
that would rapidly need to find its own forms
of regulation, forms that would over time
come to resemble something not very differ-
ent from what we have now.
Through the efforts of individual publish-
ers and learned societies and their trade asso-
ciations, through the collective-licensing
activity of reprographic rights organizations,
and with the encouragement of governments
who for good trade reasons tend to be fairly
consistently supportive of copyright, the reg-
ulatory framework of intellectual property
protection will (as we are already seeing
in the online-music business) find its own
equilibrium: one that balances freedom-of-
information with the rights of the author in
the commercial marketplace.
Kevin Taylor
Intellectual Property Director
Cambridge University Press
The Edinburgh Building
Shaftesbury Road
Cambridge CB2 2RU,UK
Email: ktaylor@cambridge.org
OCTOBER 2006