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JILT 2002 (2) - Orlan Lee


Contents

Abstract

1.

Teaching Proper Research Methodology vs. Academic Due Process

2.

Enhanced IT without Respect for Intellectual Work Product

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Dealing with Plagiarism in an Electronic Age


Orlan Lee
MA, Dr.Jur.utr, JurisDr, LLM
Adjunct Associate Professor of Law
School of Business & Management
Hong Kong University of Science & Technology
Visiting Fellow, Clare Hall, Cambridge
acfolee@uxmail.ust.hk
 

Abstract

In Hong Kong, many students come to university with years of pure and applied mathematics and physics or chemistry, but with often poorly developed knowledge of either English, or literary Chinese. In these circumstances, communication itself may be a problem, let alone maintaining the standards of objective literary research and composition. Mainland students who come to do advanced degrees often find themselves in a similar position.

For a generation that learns word processing, and email, without ever having learned penmanship, grammar, and syntax, reading a book or writing a letter may already present a challenge, let alone preparing a research report, or a final examination. The student who has never read a book above the level of computer language instructions needs training in verbal and analytical skills before he or she can learn to read an ordinary text, much less to write discursively. Furthermore, for the generation brought up on electronic communication, intellectual property in the written word has little currency. The ability to photocopy, and to cut-and-paste electronically is taken for granted. Where electronic communication is the preferred medium of instruction, should we wonder if the internet is also deemed the chief source of literary research?

Embroidering on an old story is a time-honored pursuit in Chinese literary history. Successful stories and operas have been told and re-told. Favored designs and styles have been copied and re-copied for generations in the arts and crafts. Now electronic means are employed to do much the same thing with more sophisticated products in the electronic media. Respect for intellectual property comes slowly. The author has testified elsewhere to the successes of our students in adjusting to analytical reasoning and problem-solving techniques. The concern here is that the problem of dilution of standards that may accompany democratically increased access to higher education is not resolved solely by elaborate formal measures and rules for 'quality assurance'. These cannot succeed by themselves where little regard is given to teaching basic literary and verbal skills - where education administrators are forced to achieve enhanced 'productivity' based upon reliance on 'innovative technology' without commitment to support the individual attention capable of laying the groundwork for fundamentals.


This is a Commentary published on 16 August 2002.

Citation: Lee O, 'Dealing with Plagiarism in an Electronic Age', The Journal of Information, Law and Technology (JILT) 2002 (2) <http://elj.warwick.ac.uk/jilt/02-2/lee.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002_2/lee/>.



1 Teaching Proper Research Methodology vs. Academic Due Process

There is a story about an Oxford college don whose student read him a paper that sounded just too familiar. The tutor got up from his chair, took down a book from the shelf, and began reading aloud along with the student word for word from the same passage. The student stopped in his tracks. The tutor sat down again. And nothing more was said on the subject.

That student was allowed to recognize that he had been found out, presumably to go forth and never sin again. But what about the student who does not learn his lesson by having to concede, silently, that he has showed himself up as a fraud? What if the paper plagiarized is a little more obscure than one you can just pull down from your office bookshelf? What if the student doesn't have the fine sensibilities to recognize the difference between plagiarism and research? What if he excuses the offence as 'just what all the others are doing'?

Our Faculty Handbook provides procedures for taking action against 'academic dishonesty'. Measures are applied according to the degree of the offence. Yet, while these steps may be acceptable for commencing litigation, they are no guide for dealing with the fundamental problem of a student who does not recognize the difference between research and plagiarism or does not care. The Handbook deals only with due process. There is no consideration of the result. The student may save himself by degrees, but generally would not be totally redeemed. The instructor would not particularly enhance his reputation in the process, either.

What you do when the situation actually arises also depends a lot on the personalities involved. What you can do depends as well on whether the breach is committed by an individual, face to face, or whether it is done largescale, by many students, with the individual students unknown to the instructor because he only sees the work they submit, but does not know or recognize the authors.

Not long ago, a student gave me a draft of his paper to preview as I had refused to accept a paper proffered on an earlier occasion as inadequate. At first this new effort seemed to be a major improvement over the last - a few footnotes were called for to support the facts, the English was better than I had heard from the student himself, but, there is nothing wrong with having sense enough to have your work proof-read by a friend..., the student had located some Chinese law reports it seemed. But, 'just a moment...' I thought:

'I am afraid, my friend, this was not written by you. It is not simply that the style is too good. You just would not have, you could not have, written in a manner like this. Nor would the language ever have been used by one of your native Englishspeaking classmates'.

It was not English colloquial. It was English academic. At first it had seemed that my business student author had culled out the law reports he related here from newspapers, or articles, or summaries of the law. But, this writer assumed too much knowledge for the extent of the researches of a scholar who had only been spending his spare time after his day-time job to work on the project. He was familiar with deals, and contracts, and courts, and mediators, and passages of statutes, and developments of law?.

But still I read on. Because what was said in the paper was important. Through some good fortune, this student had found a good piece of work to follow. Follow? He had taken it over word for word, page after page. You are not expected to invent case material. It has to be drawn from somewhere. But the difference between plagiarism and research is not simply including the other fellow's footnotes. Taking over your source's case citations is one thing (you can always footnote to that). Taking over your source's research,? taking over your source's reasoning,? taking over its writing style and composition,? taking over an article entire as your own,? ?that much gall, even this novice writer knew, is substitution of the work of another for his own.

And still I read on because, unwitting or not, the student had hit on a piece of legal writing that was on the frontiers of legal research on Chinese court procedures. The underlying paper (that is the one that the student had copied and submitted as his own) was an exciting piece of research. Discovering this source, whether on my direction, or the student's own initiative, was a noteworthy accomplishment, but claiming the research and authorship as his own, was a fraud.

To give the student his due, not the whole term paper was plagiarized. Let's say just 90%. The rest included well chosen pieces from Chinese reference works and reports. To have found the relevant underlying article was also no mean accomplishment, but this MBA student was already in management. He had the leading law firms in Hong Kong supplying him with summary material on developments on law in China.

What does it tell me about a student who does not acknowledge the difference between taking five or six lines, in quotation marks, and taking over the whole work product of his source and probably of his outside counsel as well? That he has contempt for the academic institution that is awarding him his degree and is about to confer an academic distinction on him - first of all to certify his competence to do independent research, but also to manage others knowledgeably and in good faith, and with due regard for their contributions?

The point is that this was no ignorant schoolboy. This was a business manager with a staff of employees who depend on his wisdom and instruction to do their jobs. That is who was standing there telling me that there was nothing special about slipping in somebody else's work to get him a grade in a degree course that tells the world that this is a business leader.

'We are all doing it in all our courses,' he objected. 'Just taking a lot of stuff from different places, and putting it all together'.

'Not acceptable again, my friend. You may get your degree in the end. But we will have to start from scratch all over again'. That student obviously had the advantage of small enrollments in our early years. But was this 'unfair' to the other students to spend more time on this student when others were left to manage for themselves? It has to depend, in part, on whether the student is worth the extra time to teach at MBA level what he should have learned as an undergraduate. It also depends on what damage any other course of action would do to the parties involved, to the institution, and to the community from which this student comes. It is 'Inconvenient' for all of us perhaps. Yet 'inconvenience' cannot stand in the way of the very purpose of a university. If we cannot teach the meaning of research, there is nothing left. Everything else can be read in books.

Universities in Hong Kong have almost doubled in size in the past ten years. They have taken on a new mission in democratic accessibility in Hong Kong, and a mission in China as well. The education authorities have made the teaching rewards high, and have attempted to have the standards correspond to the highest in the world. Yet, mere recitation of standards does not mean that you actually have the manpower to carry out the mission. It is well known that teaching of fundamentals is slipping in Hong Kong as elsewhere.

Government officials and university administrators look for a magical way out. IT is their most promising contender. No doubt IT has much of value to offer. Just imagine how devastating it would be for our business and industry, let alone for our academic establishment today, if we had to go back to the technological level of, say, the first IBM electric typewriter. Yes, we can write faster. We can communicate and handle information faster. But it is no easier, no better, no safer to run a modern industry or a university on the basis of IT, if we cannot be sure of the inputs.

With proper technology, we can handle the numbers and the volume of the workload better. We can certify far more students. 'Web-based teaching' sounds attractive to budget minded education administrators. But machines do not teach. They can transmit information. But they cannot deal with it. IT offers tremendous advances for accessing information. But we are then all the more dependent on human resources to train others in verbal and reasoning skills to manage it.

2. Enhanced IT Without Respect for Intellectual Work Product

In Hong Kong students come to us with a magnificent talent for computers. And, for them, the first step in any take-home assignment is a visit to the internet:

'The mixture of precedent and statute law, topped by a thin icing of principle, provides English and Hong Kong judges with countless possibilities', one memorable term paper began...

'Are these the words of my students?' I had to wonder. 'They don't eat cake! - they have no idea what 'icing' is!'

'Almost any view of the law can be argued by a moderately able barrister, and many judges let themselves be swayed towards the view adopted by the more skilful of the two appearing before them...',the paper continued.

The paper was far more outspoken than any lecturer accustomed to meeting our Hong Kong students would find them, in person. Our students will typically file in, climb to the top of the lecture hall, line the walls, and turn their heads around if addressed by an instructor. 'He is talking to someone behind me,' they think. 'He couldn't mean me!' But, here, was every bit of the acid writing of the Hong Kong English press.

This nineteen-page term paper had no quotation marks, no footnotes, only a page of eight 'References', citing the URL of the Academic Universe database four times. The paper summarized four Hong Kong cases. One of these summaries from their textbook, and three English cases cited in the 'References' only to All England Reports. The three Hong Kong cases, from Academic Universe , I have to presume, were taken, not from case reports, but from newspaper accounts. Academic Universe, is our university library's on-line successor database to the Lexis/Nexis service. The Lexis portion includes almost only American case reports. But the Nexis side does refer to the worldwide press, including Hong Kong's. The three Hong Kong 'case reports', therefore, had to have come from press reports. However, not only the facts reported, but also the editorial comment, the whole concept and intellectual work product of the original reporter had presumably been taken as well.

The computer program that brought up the cited newspaper report was quite sophisticated. I am guessing at the source, because even the student team themselves could not reproduce the search when asked to do so. I had given the team the assignment to write on the doctrine of 'absurdity' in the law, with reference to local and English cases. What they turned up was a string of cited cases, where, their source agreed - no, advocated - that the outcome was 'absurd'. But what the students took over was not simply the example of a case cited, but also a whole pattern of similar cases referred to. In other words, they took not only the facts and sources of their 'reference'. They took the basic concepts, the argument, and the whole intellectual work product of the journalist, as well. Not as authority, but as their own contribution.

Here, in Hong Kong at least, our students work in 'teams'. I am not quite sure where this bit of socialization comes from, but I am prepared to accept it, although perhaps like others in my own academic tradition, I would prefer individual work and opportunity for assessment. Teamwork works well where the team members actually discuss and develop a concept or an argument, as a 'team', together. It is a sham where they work as an assembly line, and the instructor is given to understand that he can question only the one team member ostensibly responsible for the particular section of piece-work, if he dares to question them, verbally, at all. Therefore, it often happens that other members of the team will not have any idea what colleagues have brought into the mix. I generally make it a practice to discuss such assignments before, during, and after presentation. Somehow this one seems to have escaped early review.

Our university has a first year course in computer techniques for the entering student. Every student is also required to take a three-year foundation course in use of English. 'Tertiary' education in Hong Kong is essentially English language instruction. Why, I asked the Head of my Department and the Director of the Language Center, did neither of these two courses have an impact with respect to the insidious practice of cutting and pasting from other people's work? The Director of the Language Center immediately responded with chapter and verse from their first year textbook, a fine textual introduction to the proper forms of 'referencing' and avoidance of plagiarism.

'Then would you give my students a refresher lesson, please!' They did. But as I sat through it myself it was obvious why it had not worked in the first place. The students had memorized the lesson (three years before) and they merely had to repeat all the answers back by rote. 'What is plagiarism?', they were asked. 'Presentation of work, which actually originates from other sources, as one's own', they echoed. 'How do we avoid it?' they were asked. 'By 'paraphrasing', 'summarizing', 'quoting' and 'referencing',' the responses came practically in unison. A wonderful example of the 'Chinese schoolroom'. All recitation. No practical application.

No, don't be so sure that you, or your students, are ethnically safe. This is not simply a 'Chinese' problem. 'Chinese' here is simply historical, memory of ancient practice.

For 'Chinese', here, today, read 'tutorial school' - wherever the instructor is content with standardized answers to standardized questions and wherever the lesson plan is dictated by education administrators with a pre-determined syllabus to convey. All this is warmly accepted, and enforced, by students whose understanding of learning is defined by the television Quizkids notion of cramming facts into their heads and repeating them again on call, which got them into university in the first place.

'Oh, I know, you want us to write our opinions', my North American-style pedagogy socialized savants dutifully respond.

'No, thank you,' I reply, 'You have no opinions - until you deal with the facts of the case, the problems they present, the legal issues that arise there, and prior decisions'.

The remedy for such absence of verbal and communication skills of many of our graduates, recently adopted by the Board of our School of Business and Management, is that, henceforth, every course must have a written and oral communication component. Only a one page requirement for the first, and only a five minute videotape for the second. That is a minimum, of course. Obviously, this 'cure' is one adopted for a university environment that has almost completely gone over to some kind of 'multiple choice' or quantitative results form of examination and assessment.

What this does not address and what the Hong Kong academic community as a whole seems to ignore - from the University Grants Committee (the government funding agency) to the university administration, to the individual faculty member, is the almost total dependence of our students on the internet for discursive material.

'Web-based teaching' is being officially promoted, here, perhaps for the worthiest of reasons: breaking through to a readership that will not open books. Millions of dollars seem to be going into 'research and development' in that area - providing salaries for technicians and research grants for teaching innovators. It is a wonderful opportunity for distance learning. In the African bush or Siberia, that is! Hong Kong itself has well-funded libraries, and the best paid faculty members in the world. Why take our intellectually little-socialized students and face them into computer screens in what are surely some of the richest universities in the world?

There is no denying the vast opportunities afforded by IT and the internet. In the area of legal research alone, recent IT advancements have achieved enormous time-saving in sorting and shuffling through the vast body of case law and statutes. But, despite these electronic marvels, there can be no doubt that the greatest invention in the history of IT was movable type! Hong Kong's university and public libraries have excellent resources available in all mainstream fields. Why then make literary cripples out of our students, who learn to 'cut-and-paste', but often hardly know how to assess a line of what they reassemble?

Actually, law is a wonderful subject for teaching 'referencing', as the language courses for our entering students call it. Law is based on Authority. In this respect, law is a model for all academic fields that rely on a literary 'database'. Having these marvellous new tools to cut-and-paste with is tremendous progress if what we are doing is demonstrating the development of a verbal argumentative or thought process. Computers can save us an enormous amount of time in making a case with respect to the literature of a fieldjust the same as they can for quantitative reasoning.

If only my student team had grasped the full force of the idea they had presented as their own.

'But, my friends, you don't have to make people think you talk in the language of case reportsor of the learned literature. You learn how to cite these things. You argue what they stand for. And, you put together an edifice that 'makes a case'. You learn how to do this well, and you may soon understand, as well as quote, the insight of the real author of the second line of your team's term paper': 'Almost any view of the law can be argued,' you say. But that is true of any field based upon verbal reasoning and I suspect even quantitative reasoning. Put it simply: 'reasoning' itself is what 'can be argued'!

You say, or you quote, 'many judges let themselves be swayed towards the view adopted by the more skilful of the two?appearing before them.' Just as many scholars, and many engineers, and many other kinds of people you can mention, do.

This is, of course, a weakness of the practice of law - doubtless it is also a weakness of the practice of the entire academic profession, the weakness of all of us. But that weakness of the verbalor the quantitative reasoning process is the whole purpose of our verbal, critical, and analytical training. Hopefully, conscious of the pitfalls, we can then learn to separate the cogent from the doubtful, the deficient, or even the non-sensical argument.

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