Archiving a Submitted Work for Later Reference in Originality Evaluations of Others' Work

Copyright
The archival of a submitted work is perhaps the most legally sensitive aspect of the TURNITIN system. If a student submits a work for evaluation and archival, or clearly agrees to the archival of a work, there is no issue. Otherwise, the archival raises the issue of whether the conversion of a work to electronic form, and maintenance of it in a database, constitutes a "fair use" of the work.

Use of a work for non-profit educational purposes is presumptively fair, under most circumstances. 17 U.S.C. § 107. However, although the overall purpose of creating a database of student works is to increase the efficacy of the TURNITIN plagiarism detection system, the system is provided to institutions on a for-profit basis, and is therefore commercial in nature.

Commercial use of a work may still be "fair use" under U.S. Copyright Law (17 U.S.C. §107), especially when less than the entire work is being used, and/or the use does not "materially impair the marketability of the work which is copied." Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566-67 (1985). Here, the actual work is used by the TURNITIN system only as a reference, for purposes of creating a separate work, the digital "fingerprint". If there is a match between a submitted work and fingerprinted portions of an archived student work, only that matching text is highlighted in the originality report.

The identification of a textual match between documents relays a fact, which is not protected from disclosure by the Copyright laws. 17 U.S.C. § 102(b). Where there is no way to express the fact in question except by copying of the underlying material, the fact and the portion of the material representing it are said to have "merged", excluding the material itself from the ambit of copyright protection. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991); Harper & Row Publishers, supra at 556; Veeck v. Southern Building Code Congress Int'l, Inc., 293 F.3d 791 (9th Cir., June 7, 2002). Because one cannot identify a passage as having been copied without matching it to the material that was putatively copied from, display of the matching material is not prohibited by copyright.

No other portions of the archived work are displayed, used, published, distributed or further copied without prior author consent. Compare, A&M Records, et al. v. Napster, at 1015 and 1019 (distribution of a copied work to the public without the copyright holder's consent implies that the copyright in the copied material may have been infringed). As such, the archival does not publish the work as a whole, or otherwise impinge on the author's ability to exploit the work commercially. Because the "primary objective of copyright is not to reward the labor of authors but '[to] promote the Progress of Science and the useful Arts" (Veeck, supra as reported at 2002 U.S. App.LEXIS 10963, *25), the minimal use of a student's work to ferret out plagiarism in others works, without making the work itself available to the public, is a fair use that does not infringe any copyright which may be present in the archived work.

- posted by Milan @ 7:12 PM