Plagiarism, Copyright Infringement, Fair Use and Environmental Organizations

By Kenneth Barbalace

[Tuesday, October 16, 2007]

One of the things that always amazes me is how poorly non-profit environmental organizations understand Fair Use clauses of the copyright law and how frequently individuals (even leaders) of these organizations plagiarize from others when writing their own articles. In our case, articles we publish on EnvironmentalChemistry.com have been frequent victims of copyright infringement and/or plagiarism by different well know environmental organizations.

We are flattered that these environmental organizations want their membership to read what we write. Unfortunately, the republishing and/or plagiarizing of our works really does cause us long term financial harm. This, in turn, hurts our ability to pay fair rates to highly qualified professionals, scientists and academics who write the very articles for us that these organizations find so valuable to their causes.

Like traditional media outlets, we depend upon advertising revenue to provide the funding we need to pay writers to research and write the articles we publish. We do not have some wealthy benefactor nor government agency underwriting our efforts. We fund the writing of new articles with the ad revenue existing articles generate. In turn, the new articles will eventually help to fund yet more articles. The more ad revenue we can generate, the more really good articles we can have written and publish.

When an individual or environmental organization plagiarizes or republishes our articles on their own websites, they cause us harm in three ways. First, if they republish our article on their website, instead of simply linking to the article on our website, they provide readers access to our content without us having an opportunity to display the very advertising that enables us to publish these articles in the first place.

The second way we are harmed is that when someone republishes or plagiarizes our articles on their own websites, they create a competing copy of our works for search engines to index. These competing copies of our articles can cause a duplicate content penalty to be assigned our original article. This can result in our article being buried in search results, thereby limiting the number of readers who find our article, and thus limiting our ability to recoup our initial investment. Alternatively, the duplicate copy of our article showing up in search results can also siphon off readers we might otherwise attract to our original article. Again, this limits our ability to recoup our initial investment via the advertising we display on our pages.

The third way plagiarism and the republishing of our articles harm us is that we really depend on people discovering and then sharing our website with their friends. If someone republishes our articles on their own site instead of simply linking to the original article with a short description, we lose the opportunity to introduce new readers to the other articles and resources our site has to offer. This, in turn, costs us an opportunity for the word of mouth promotion that we depend on so dearly to help increase readership.

Plagiarism is Academic and Intellectual Fraud

Any teacher will confirm that there have always been lazy students who liberally "copy and paste" writing by others into their own reports. The Internet, however, has made this seductively easy and more people in all walks of life are crossing the line from being influenced by the writing of others to actively copying and pasting other's writings and claiming them as their own. This is plagiarism, as well as academic and intellectual fraud.

When one references the writings of someone else one MUST NOT simply copy and paste select sentences or paragraphs from the other writings and include them in their own writings. Instead, one needs to read and absorb the message of the writings and then distill the message in one's own words. Even changing the order of words in sentences or replacing a few select words now and then is not sufficient to avoid plagiarizing the works of others – the words must be original. If one does decide that a section of text from the original writings needs to be incorporated into one's own works then proper citations (including full webpage address for online writings) needs to be clearly provided to ensure proper credit is given to the original source of the copied writings.

The line between being influenced by and plagiarizing the works of others can be a very fine line, which is why it is always important to properly cite referenced used when writing. It is also why I run every article submitted to me for publication through tools that are designed to detect plagiarism.

The latest case of our content being plagiarized is an editorial on the website of a well known environmental organization. From what I can tell, the writer is the president of the organization. In the editorial, a very considerable section of our article "Mercury in Fish vs. Omega-3 Fatty Acids Health Benefits", was copied and pasted into the editorial without any citation to our original article being provided. In all, the plagiarized section of the editorial is 80% identical to the text in our original article (around 650 of around 800 words). The only changes made to the plagiarized content were the occasional addition or deletion of a couple of words here or there to make it appear original. By taking the text from our article and claiming he wrote it and that the thoughts and words are his and his alone (by way of a lack of proper citation), the president of this organization has committed plagiarism and intellectual fraud.

When it comes to intellectual integrity and the sharing of important messages, the ends never justify the means. Those who plagiarize and/or commit intellectual fraud to further their cause should be rebuked because in the end, their fraud will be exposed and it will do more harm to their cause than good.

Right now I will allow the individual and organization to remain anonymous. If, however, my emails to the organization and individual in question are ignored, and the issue of plagiarism is not addressed to my satisfaction, I will publish in painful detail the extent of the plagiarism and make sure that this incident of intellectual fraud is fully exposed to the light of day.

The Fair Use Misunderstanding

Frequently environmental organizations will use the Fair Use clause of copyright law to defend their republishing articles on their websites. The problem is they have a complete misunderstanding of what protections the Fair Use clause affords and they are claiming fair use rights they do not have. Title 17 of the United States Code, Section 107 states:

Section 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Simply being non-profit and having a noble cause does not grant one Fair Use status. One must meet all four criteria for Fair Use. Republishing articles on one's website that are already published on anther website violates requirements number 3 and 4. Number four is violated because a competitive copy of protected works is being created, which competes against the original in search engines and draws readers away from the original, thus denying the author the ability to earn compensation for their efforts. In addition, copying and republishing an article instead of linking to the original article would be more than is necessary to serve the purpose of commenting on, criticizing or informing readers of said article.

A very good example of how courts interpret the requirements for Fair Use protection is the case Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669 (C.D. Cal. 2000). Chilling Effects summarizes the case as follows on their Fair Use FAQ's:

In Los Angeles Times v. Free Republic, the court found that such a use was minimally -- or not at all -- transformative, since the article ultimately served the same purpose as the original copyrighted work. The initial posting of the article was a verbatim copy of the original with no added commentary or criticism and therefore did not transform the work at all. Although it is often a fair use to copy excerpts of a copyrighted work for the purpose of criticism or commentary, the copying may not exceed the extent necessary to serve that purpose. In this case, the court found that only a summary and not a complete verbatim copy of the work was necessary for the purpose of commentary and criticism.

The court also found that although the website solicited donations and advertised the services of another website, the overall nature of the website was non- commercial and benefited the public by promoting discussion of the issues presented in the articles on the website. However, the court found that the nontransformative character of the copying outweighed the consideration of its minimally commercial nature.

Finally, and most importantly, the court found that posting entire news articles on the website had an adverse market effect on the copyright owners.

If you want to explore the issue of Fair Use, one of the best sources I have found on this topic is the "Fair Use FAQ" at ChillingEffects.org, which is maintained by the George Washington University Law School.

Please Respect the Copyrights of Others

Please, the next time you see a really compelling article that you would like to share with others do not copy and/or republish the article elsewhere. Instead, reward the hard efforts of the original publisher of the article by providing a link to the original article along with a brief summary. This will help ensure that the publisher can continue to produce the content you find so compelling.