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Republishing without Credit Raises Ethical and Legal Questions

Oct 1, 2017


Situation

An ASCE member and sole proprietor of an engineering consulting practice contacts the chair of a nearby university's geotechnical engineering division. The member explains that he has a research idea involving experiments on model piles, and he wonders if one of the school's graduate students might be interested in taking on this idea as a thesis topic. The professor expresses interest and identifies a potential candidate, but he explains to the member that the student is likely to require financial assistance for the costs of constructing the model piles. The member agrees to pay for these costs, and the student performs the research. Upon completion of this work, the student sends a copy of his final report to the ASCE member.

Some two years later, the university professor receives the latest issue of a geotechnical engineering journal and notes that it includes a paper by the ASCE member about the same model piles research. Upon review of the paper, the professor realizes that several large excerpts from his graduate student's thesis have been reproduced almost verbatim in the published paper and that many of the figures and tables presented also appear to be copied from the student's report. The member's published paper makes no reference to the graduate student's contributions, although the paper's acknowledgments include a brief statement of thanks to the university itself.

The professor submits copies of his student's report and the member's published paper to ASCE's Committee on Professional Conduct (CPC), which promptly opens a case.


Question

Did the member's conduct in republishing parts of the graduate student's work under the member's own name violate ASCE's Code of Ethics?

Discussion

The issue of plagiarism is most commonly viewed under the lens of canon 5, which states that "Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others." Category (e) under the guidelines to that canon adds, "Engineers shall give proper credit for engineering work to those to whom credit is due, and shall recognize the proprietary interests of others. Whenever possible, they shall name the person or persons who may be responsible for designs, inventions, writings or other accomplishments." This provision makes it clear that the ethical obligation to give proper credit is not merely a matter of professional etiquette but also one of competitive equity--meant to ensure that individuals do not receive professional or academic accolades through misappropriation of another person's work.

While plagiarism cases are often fairly simple to resolve, in this case the facts went beyond a simple analysis of whether or not the member copied someone else's work. Rather the case raised questions about the ownership of intellectual property and how this concept is handled both as a matter of ethics and under the law. Indeed, when contacted by the CPC, the accused member was quick to offer as his defense a claim that he was the rightful owner of the paper's ideas as well as its written content.

The member argued that both the research idea and the university's involvement were initiated by him, and that he had both financed and designed the model used for testing his concept. He further claimed that all parties had understood that the member's goal in sponsoring the research was to solicit materials he could use in preparing a full-length paper on the subject, and that the student's transmission of a final report was in fulfillment of that agreement. In short, the member felt that he had provided sufficient credit to the university through his acknowledgment, but that otherwise he was entitled to use the student's report at his discretion.

In response to the member's contentions, the professor denied that there had been any agreement to provide content for the member. The professor pointed out that there had been no written contract between the member and the university, and that the member had paid only for the direct costs of constructing the model, not for the student's time or other costs commonly billed as "sponsored research." He claimed that the student had sent a copy of his thesis to the member as a courtesy, but that neither he nor the student had ever consented to the member's use of the thesis in another scholarly work.

With respect to the member's claim to the report's ideas, the professor agreed that the research topic and model design had come from the member; however, the testing program and other aspects of the experiment had been developed by the student. Furthermore, the professor stated that the test results had not proved to be very meaningful, but that the student "had done his best to develop a theory to explain them," and that the member's paper had reproduced the student's theory word for word.

In reviewing this case, the CPC first considered the legal validity of the member's claim of ownership of the research. It is a general principle of copyright law that copyright protects the expression of ideas, not the ideas themselves-and that ownership of a copyrightable work is presumed to be vested in the person who created that work. Two notable exceptions to that principle are the work done by an employee in the performance of his/her job duties (in which case copyright ownership flows to the employer) and work done under a contract that meets the law's specific requirements for creation of a so-called "work for hire." In the present case, the student had prepared the written report entirely on his own, and there was neither an employment arrangement nor a clearly established "work for hire" contract with the member. The CPC concluded that ownership of the student's research properly belonged to the student.

As the member did not have a legitimate claim to ownership of the student's work, the CPC felt that the member's use of excerpts and other materials from the report without proper quotation or acknowledgment of the source represented a clear failure to "give proper credit for engineering work to those to whom credit is due," as the code states. Moreover, recognizing that ethical guidelines often impose a higher standard than that established by law, the committee noted that the member's omission of any reference to the student's contributions would probably have failed to meet the ethical requirements for proper recognition even if he had held the legal right to do so.

On the other hand, the CPC felt that the member at least believed that he was within his rights to use the student's work as he did, and that he had not intentionally or maliciously sought to achieve professional accolades by violating another's intellectual property rights. In view of this consideration, the CPC concluded that the member had violated canon 5, but they did not believe that the member's behavior was egregious enough to warrant formal disciplinary action.

The committee decided to close the case, but sent a cautionary letter to the member advising him that his actions were not consistent with the Society's professional standards of conduct and directing him not to engage in similar conduct in the future. Notice of the CPC's findings was also forwarded to the journal that had published the member's paper for a determination as to whether the offending paper should be corrected or retracted.

This case was decided in the early 1980s, and more recent decisions by the CPC suggest that today's committee would take a much tougher stance in such a case. Because plagiarism is widely recognized as a significant act of publishing misconduct, it is crucial that those seeking to publish material that is not of their own creation carefully review the prevailing standards regarding the proper quotation and attribution of others' work.



Members who have an ethics question or would like to file a complaint with the Committee on Professional Conduct may call ASCE's hotline at (703) 295-6151 or (800) 548-ASCE (2723), extension 6151. The attorneys staffing this line can provide advice on how to handle an ethics issue or file a complaint. Please note that individual facts and circumstances vary from case to case, that some details may have been altered for purposes of illustration or confidentiality, and that the general summary information contained in these case studies is not to be construed as a precedent binding upon the Society.