Avoiding plagiarism in legal writing

By Teresa Scassa

The following pages arc designed to explain the academic offence of plagiarism. First, you will find a copy of the Dalhousie University regulations regarding plagiarism. These regulations have been annotated in italics to provide further clarification. Second, you will find a short excerpt from a published text followed by five writing samples and commentaries which are intended to illustrate some common forms of plagiarism or inappropriate attribution.

Dalhousie University defines plagiarism as the presentation of the work of another author in such a way as to give one's reader reason to think it to be one's own. Plagiarism is a form of academic fraud.

Plagiarism is considered a serious academic offence which may lead to loss of credit, suspension or expulsion from the University, or even the revocation of a degree.

In its grossest form plagiarism includes the use of a paper purchased from a commercial research corporation, or prepared by any person other than the individual claiming to be the author.

Self‑plagiarism is the submission of work by a person which is the same or substantially the same as work for which he or she has already received academic credit.

The university attaches great importance to the contribution of original thought to scholarship. It attaches equal importance to the correct attribution of authorities from which facts and opinions have been derived. The proper use of footnotes and other methods of attribution varies from discipline to discipline. Failure to abide by the appropriate standards of the discipline concerned in the preparation of essays, term papers and dissertations or theses may, in some cases, constitute plagiarism.

Students who are in any doubt about the proper forms of citation and attribution of authorities and sources should discuss the matter in advance with the faculty member for whom they are preparing assignments. In many academic departments, written statements on matters of this kind are made available as a matter of routine or can be obtained on request.

Academic research is predicated on the presentation of accurate and honestly derived data. The falsification of data in reports, theses, dissertations and other presentations is a serious academic offence, equivalent in degree to plagiarism, for which the penalties may include revocation of degrees, loss of credits or suspension or expulsion from the university.

University regulations, as well as penalties and procedures are contained in the law school academic calendar.

Read the following excerpt from William L Hayhurst and the examples which follow it. In your view, which of them constitute plagiarism or inappropriate or inadequate attribution? You can check your answer against the commentary which follows each sample.

(From William L. Copyright Subject‑Matter", in Gordon F. Henderson, ed., Copyright and Confidential Information Law of Canada. (Toronto: Carswell, 1994), pp. 29‑98, at 67‑68).

© This excerpt has been copied under licence from CANCOPY. Resale or further copying of this material is strictly prohibited.

I have referred earlier to the origins of copyright as having, as at least one of its justifications, the advancement of knowledge or learning. Clearly that is no longer regarded as an essential goal, because copyright may subsist in the absurd, the trashy and the titillating1, subject to the court's discretion as to remedies.2 Reference has been made to the Exxon case,3 in which the English Court of Appeal used the test of whether an alleged literary work is intended to afford information, instruction or pleasure in the form of literary enjoyment. This test was considered in an Australian case, Kalamazoo (Australia) Pty. Ltd.  v. Compact Business Systems Pty. Ltd., wherein the plaintiff claimed copyright in a compilation of blank accounting forms, viewed as a totality or single work.  The Australian Act had this definition: ""literary work" includes a written table or compilation". Of the plaintiff's forms, Thomas J. stated:

Mr. Cooper Q.C. for the defendants, submitted that a "literary work" requires, as a minimum, that information, instruction or pleasure in the form of literary enjoyment be conveyed. Reliance was placed upon Exxon Corporation v. Exxon Insurance Ltd. [19821 3 All. E.R. 241; 1 Ch. 119 at 142‑3, 144. Courts have refrained from spelling out any particular degree of skill perceivable from the words of the publication, and it is clear that literary merit is irrelevant. The formulation in the Exxon case was not treated as definitive or exhaustive by the members of the Full Court of the Federal Court in Apple Computer Inc. v. Computer Edge Pty. Ltd. (1984) 53 A.L.R. 225 at 234‑5, 258‑9.  The approach taken in Mirror Newspapers Ltd. v. Queensland Newspapers Pty. Ltd. [19821 Qd. R. 305 at 307 and Ladbroke (Football) Ltd. V. William Hill (Football) Ltd. [1964] 1 All. E.R. 465; 1 W.L.R. 273 at 285, seems to be inconsistent with the proposition derived from the Exxon case. In his valuable work The Law of Intellectual Property, Mr. Ricketson considers the denial of copyright on such a ground to be an aspect of "insubstantiality", a problem which commonly arises in relation to titles of works, slogans, phrases and, sometimes advertisements (paras 5.61 to 5.63). This is, I think, the true basis of the rejection of copyright for some works that obviously fail to provide information, instruction or pleasure.4

An earlier South African decision, also involving Kalamazoo business forms, was cited with approval by Collier J. in  Bulman Group Ltd.. v. "One Write" Accounting Systems Ltd. in making the following point:

Even if the imparting of information of some kind is necessary to bring a compilation into the ambit of a "literary work" then, in my view, that has been done here.  The various headings on these forms convey information to the user as to what he ought to record, where he ought to record it, and the manner, in many instances, in which it ought to be recorded.

Notes:

1. Or, as put by Muldoon J., the "noble, sober and serious" and also the "vulgar, humorous or even gross": Baron v. Hooda (1987), 17 C.P.R. (3d) 161 at 166 (Fed.T.D.).
2. Aldrich  v. One Stop Video Ltd (1987) , 17 C.P. R. (3d) 27 (B .C.S .C .).
3. See text, supra note 46.
4. (1985), 5 I.P.R. 213 at 232 (S.C. Queensland).
5. (1982), 62 C.P.R. (2d) 149 at 154 (Fed. T.D.). In an earlier decision, Bulman Group Ltd. v. Alpha One‑Write Systems B.C. Ltd. (1981), 54 C.P.R. (2d) 179 (Fed. C.A.), Le Dain J.A. at p. 183 expressed the opinion that it was "at the very least doubtful" that a work must & informative in order to be a literary work.

Writing Sample #1

Copyright has, as at least one of its justifications, the advancement of knowledge or learning.1  This rationale is no longer the only one, because it has been determined that copyright may subsist in the absurd, the trashy and the titillating.

Notes

1. William L. Hayhurst, Q.C., "Copyright Subject‑Matter", in Gordon F. Henderson, ed., Copyright and Confidential Information Law of Canada.. (Toronto: Carswell, 1994), pp. 29‑98, at 67.

Commentary

This is plagiarism. Even though some words in each of the sentence have been changed, there are long strings of words which are taken verbatim from the original. In addition, the sentences map the structure of the original text. It is not sufficient that the author has footnoted the first sentence to the original source. Where words are taken verbatim from another text, they must be quoted.

Writing Sample #2

Originally, one of the justifications for copyright was to advance human knowledge. This is no 1onger considered essential.1  A number of cases have found that copyright can subsist in all kinds of works, whether they are absurd or vulgar, noble or serious.2 The court, of course, retains discretion as to remedies.3

Notes:

1. William L. Hayhurst, Q.C., "Copyright Subject‑Matter", in Gordon F. Henderson, ed., Copyright and Confidential Information Law of Canada. (Toronto: Carswell, 1994), pp. 29‑98, at 67.
2. Muldoon J., in Baron v. Hooda (1987), 17 C.P.R. (3d) 161 at 166 (Fed. T.D.).
3. Aldrich v. One Stop Video Ltd. (1987), 17 C.P.R. (3d) 27 (B.C.S.C.)

Commentary

This is plagiarism, since it is essentially a loose paraphrase of the opening 2 sentences of the passage by Hayhurst quoted above. Although many of the words have been changed, the ideas are the same, and are presented in the same order, and with the same authorities as Hayhurst.  It is plagiarism even though Hayhurst is cited as authority for the first sentence. (Note that even that cite is not a particularly good one, as Hayhurst himself refers for authority for this proposition to a point earlier in his article.)

Writing Sample #3

Although they do not appear to be the kind of thing which copyright law was originally intended to cover, blank accounting forms may well receive protection under the Copyright Act. The Supreme Court of Queensland has held this to be the case, so long as the forms provide "information, instruction or pleasure."1

Notes:

1. (1985), S I.P.R. 213 at 232 (S.C. Queensland).

Commentary

As the library does not carry the reporter series from which the cite is made, the author might face a serious question as to where they accessed the case from which they are ostensibly quoting. If the source is indeed Hayhurst's excerpt from the case, then the author must indicate this along with information about the case. Of course, it is always preferable to cite directly from the primary source, unless it is unavailable.

You should note as well that the cite, which is the same as Hayhurst's for this case, is incomplete. The name of the case is not mentioned in the excerpt, and should be present in the footnote.

Writing Sample #4

Copyright law can extend to cover many things which might not be considered worthy of copyright protection by the average person. For example, the courts have considered blank accounting forms to be protected under copyright law, although they have drawn the line at recognizing copyright in a made‑up name.

Commentary

No authority is provided for these statements, when clearly they are not matters of common knowledge. The author must indicate the source(s) from which s/he derives his or her knowledge. Again, the citation of primary sources is preferable where possible.

Writing Sample #5

It has been argued that the advancement of knowledge or learning is no longer required for something to be covered by copyright law.1

Notes:

1. Gordon F. Henderson, ed., Copyright and Confidential Information Law of Canada. (Toronto: Carswell, 1994), pp. 29‑98, at 67‑68).

Commentary

Although this sentence clearly indicates that the argument of another person is being considered, you should note that the citation does not give credit to the appropriate source. Although this is from Henderson's book on Copyright Law, each of the chapters in that book is authored by someone different. The authority for this statement is Hayhurst, and not Henderson. This is not plagiarism per se but it is sloppy citation.