Is anti-plagiarism software legal under EU Copyright legislation?

Are anti-plagiarism technologies compatible with copyright law? Surprisingly, this might not be the case.

Anti-plagiarism technology involves machine comparison of works such as diploma theses with pre-existing publications. This activity constitutes a use that is covered by copyright. Since no explicit limitation or exception of authors’ and publishers’ exclusive rights authorises providers and users of such technologies to use works in this way, their situation is legally uncertain, to say the least.

The legal framework is set out in the 2001 Copyright in the Information Society (InfoSoc) Directive. It obliges EU Member States to provide for the exclusive reproduction right for authors, of their works, whether direct or indirect, temporary or permanent, by any means and in any form, in whole or in part. There is only one mandatory exception to this monopoly, covering temporary acts of reproduction in networks, but even it is has to comply with strict requirements. For example, it has to be transient or incidental, and it cannot have any independent economic significance. Needless to say, the reproduction performed in the course of anti-plagiarism machine analysis does not fall under this exception.

There are several other (non-mandatory) exceptions from the reproduction right provided for in the Directive, but none of them even remotely covers this use either. Interestingly, the current proposal for the Directive on Copyright in the Digital Single Market introduces a new exception for text and data mining, but only for research organisations for the purpose of scientific research. So, we cannot expect the situation to change in the near future – anti-plagiarism machine analyses require and will continue to require authorisation from respective copyright owners. It will be possible, as before, to buy such services from foreign providers that have more functional copyright legislation.

Although Member States are not allowed to introduce exceptions beyond those listed in EU law, they do approach the issue of anti-plagiarism in their legislation and practice. For example, in January 2016, an amendment to the Polish Act on Higher Education was published, which introduced a national repository of diploma theses and a uniform anti-plagiarism system. Both are administered by the Minister of Science and Higher Education and the law obliges universities to deposit theses in the repository and verify them using the system. They said obligations are not followed by a statutory or any other authorisation in the area of copyright. In fact, the law is silent on this issue.

However, this issue has to be solved one way or another when the system is put into operation. At the time of writing, it is still under construction. Along with the published specification in the implementation, test files containing snippets of actual research papers were made available and there is also a requirement that the system would search and analyse the web in the process. It follows that at least these types of copyrighted works will be used in the system. Obviously, in order to be effective, it should also include published scientific articles and books. Such scanning, when it relates to press publications published in the past 20 years would be explicitly prohibited by the European Commission’s proposal on ancillary copyright, in the draft Copyright Directive.

But even if the system was to compare students’ theses with other theses only, the authors’ authorisation would still be necessary. Actually, since anti-plagiarism verification has been performed by many universities before the introduction of the uniform system, there is a practice of obtaining students’ consent for anti-plagiarism analyses. Many universities are simply requiring consent for anti-plagiarism analysis as a condition for the master’s exam. Whether such a mandatory consent is compliant with copyright law is also an open question. Forcing students to license their works may also trigger consumer-protection regulations. So, even this practice is far from being fully compliant with the law and it cannot guarantee that universities may perform their obligation to deposit theses in the central repository and clear their rights in order to allow for anti-plagiarism analysis. Definitely, it cannot be done without paying authors’ remuneration for such a use, should they so require.

It follows that there is little chance of the system being organised properly without intervention at the legislative level. However, this cannot happen in the near future, as it would boil down to introducing a text and data mining exception that is not foreseen in the EU’s extremely restrictive framework. Until such an exception is provided for in the EU legislation, authors’ and publishers’ legally uncertain “consent” will have to be individually contracted for by the universities or the Ministry.

Copyright reform: Document pool
https://edri.org/copyright-reform-document-pool/

Public procurement competition for uniform anti-plagiarism system (only in Polish)
https://konkurs-jsa.opi.org.pl/zadania/

(Contribution by Krzysztof Siewicz, EDRi member Modern Poland Foundation, Poland)