Cyberplagiarism in University Regulations

The arti�le examines the legal framework for plagiarism, and its twofold nature of illi�it appropriation (from the author of the plagiarized work) and fraud (with regard to the target audien�e of the plagiarism). Based on these premises, a�ademi� �yberplagiarism is analysed as a form of plagiarism �arried out using ele�troni� tools in the university setting. The question of responsibility (who �an regulate the legal �onsequen�es of plagiarism?) before and after the Ley orgáni�a de universidades (organi� law on universities, L�U) is studied, as is the dis�iplinary handling of �yberplagiarism with the limited regulations �urrently in pla�e at universities.


Legal framework for plagiarism:
an intertwining of regulations

Plagiarism as illicit appropriation and fraud
A. Plagiarism: a double-edged sword Let us assume that plagiarism means �stealing from the author and de�eiving the target audien�e of the plagiarism�. An a�t of plagiarism affe�ts two groups of interests�� a) the interests of the author (and, where appli�able, the owner of the exploitation rights of the work; for example, the publisher) and, b) the interests of the target audien�e of the work, who is de�eived into thinking that the work belongs to the plagiarizer. In this arti�le, only the se�ond aspe�t of plagiarism will be studied�� as fraud for the target audien�e of the work.

B. Prejudicing the target audience of the work
Plagiarism, as we have said, is not only detrimental to the author of the plagiarized work, but is also a fraud that is detrimental to the target audien�e. �egardless of the fa�t that this fraud is at the expense of the author, the truth of the matter is that the harm to them is instrumental, a ne�essary evil to a�hieve the main obje�tive, whi�h is to de�eive the target audien�e of the plagiarism.
In terms of private law relationships, both the publisher or the person who has requested the work, and the person who finally a�quires it �ould end up affe�ted, as all of them are de�eived with regard to the authenti�ity of the work.
In terms of publi� law, the de�eit �ould lead to the plagiarizer appearing to have greater merits than those that they a�tually have, by �laiming the authorship of another person's work or part thereof. This way they �ould, for example, fulfil the requirements for obtaining a degree or �ertifi�ate, pass an exam or gain a �ivil servi�e position, et�.
In some �ases (parti�ularly �ivil servi�e examinations), the interests of the publi� and those of the other �andidates that are ex�luded due to the false merits shown by the plagiarizer �ould be affe�ted.

Regulations applicable to plagiarism as fraud
The regulations appli�able to the other aspe�t of the plagiarism -plagiarism as fraud -vary a��ording to whether it is �onsidered from a �ivil, administrative or �riminal viewpoint.
From a �ivil or private law position, plagiarism, firstly, �ould lead to a�tions that prote�t against non-�omplian�e from the defrauded �onsumers who a�quired a work by someone other than its real author. Se�ondly, the publisher or produ�er of the plagiarized work would be able to bring a�tions derived from the brea�h of �ontra�t (termination of the �ontra�t and�or �ompensation for damages and losses) against the alleged author � From an administrative perspe�tive, the verifi�ation of the plagiarism �ould result in the annulment of any a�tion based on the mistaken attribution of authorship of a work, in a��ordan�e with arti�le 62 of A�t 30��992, for the legal system governing Publi� Administrations and the �ommon administrative pro�edure, either in terms of se�tion E, whi�h refers to the a�ts �undertaken totally and absolutely disregarding the legally established pro�edure or the regulations in�luded in the main rules to ensure goodwill among �onstituent bodies�, or se�tion F, regarding �express or alleged a�ts against the legal system by whi�h they a�quire fa�ulties or rights when they la�k the essential requirements for their a�quisition�.
�n frequent o��asions the possibility of annulling university or publi� examinations or appointments as do�tor has been �onsidered, due to the de�laration that all or some of the merits of the person were the result of plagiarism.
The legal response 2 �an be summarized along the following lines�� n Initially, the annulment is a��epted as possible, �onditional of the a��reditation that we are fa�ed with a real �ase of plagiarism. A mere �fun�tional� or partial imitation is not usually �onsidered suffi�ient. n The assessment of the plagiarism must be re�on�iled with the dis�retion of the publi� examination or do�torate boards. The �te�hni�al dis�retion� fa�tor is of parti�ular importan�e when it is not a �slavish �opy� or when the plagiarized work is not the only obje�t assessed. n Legitimization to dispute the �orresponding appointments has been widely re�ognized. For example, the possibility for a professor from the same area of knowledge and a different university to dispute the appointment of a do�tor has been re�ognized.
Lastly, from the �riminal viewpoint, in extreme �ases the possibility of a �rime of fraud �on�urring with that of plagiarism �ould arise. However, I am not aware that su�h a �ase has been brought to �ourt, and it is more than likely that the affe�ted third parties -rather than the a�tual plagiarized author -are �ontent with filing a �ivil or administrative �laim.

introduction
Having examined the general legal framework for plagiarism, we will now look at the pe�uliarities presented when it takes on the form of �a�ademi� �yberplagiarism�. We �an already reveal that these �hara�teristi�s will �ome from two points �ommon to this sort of plagiarism�� that it o��urs in the a�ademi� university environment and is �arried out using ele�troni� means.
Again, in terms of the twofold aspe�t of plagiarism, as illi�it appropriation (at the expense of the author) and fraud, here we will only deal with the se�ond, �yberplagiarism as fraud.

Applicable regulations A. introduction
As previously explained, plagiarism does not only mean a violation of the author's rights, but it is also de�eption of the target audien�e of the plagiarism, whi�h �ould warrant its own legal �onsequen�es.
It is this aspe�t of plagiarism that is most visible in a�ademi� plagiarism. The student intends to be assessed for the plagiarized work as if it was their own �reation. We therefore find ourselves in the field of assessment fraud, whi�h for�es an examination of the parti�ular dis�iplinary system for university students, as the a�ts of fraud in assessments tend to entail an administrative san�tion.
�n examining said san�tioning system and its possible appli�ation to a�ademi� plagiarism we should differentiate, for reasons that will be explained later, two different periods�� before and after the �rgani� Law 6�200�, of �e�ember 2�, for Universities (hereafter, the L�U).

B. Before the LoU
Prior to the L�U, the university student offen�es and san�tions system was governed by a de�ree of September 8 �95�, the �egulation for A�ademi� �is�ipline in �ffi�ial Centres of Higher �du�ation and Te�hni�al �du�ation that are the �esponsibility of the Spanish �inistry of �du�ation (hereafter, the �egulation for A�ademi� �is�ipline, �95�). �. This o��urs, with �omplete �ertainty, with the serious offen�es �onsisting of �demonstrations against the Catholi� religion and morals or against the prin�iples This o��urs, with �omplete �ertainty, with the serious offen�es �onsisting of �demonstrations against the Catholi� religion and morals or against the prin�iples This o��urs, with �omplete �ertainty, with the serious offen�es �onsisting of �demonstrations against the Catholi� religion and morals or against the prin�iples or institutions of the State…� (arti�le 5.a. �.), or the less serious su�h as �inde�orous words or events or any a�t that notably disturbs the order that should �.), or the less serious su�h as �inde�orous words or events or any a�t that notably disturbs the order that should �.), or the less serious su�h as �inde�orous words or events or any a�t that notably disturbs the order that should exist in edu�ational establishments, inside or outside the �lassrooms� (arti�le 5.b. �.).
It is important to stress that the �rgani� Law ����983, of August 25, for University �eform (hereafter, L�U) had �frozen� de facto any possibility of substituting the �egulation for A�ademi� �is�ipline, �95�, either by the universities or by the Autonomous Communities. Arti�le 27.3 of the L�U stated that �the universities, at the request of the University Coun�il, will establish rules that regulate the responsibilities of students with regard to �omplian�e of their a�ademi� obligations�. �iven that said proposal by the University Coun�il never took pla�e in the eighteen years that the L�U was in for�e, the universities -and probably the Autonomous Communities -la�ked the legal support to regulate their a�ademi� dis�iplinary system. This is why the regulation drawn up by Fran�o's government has been applied until �urrent times.
Case-law 3 has had the opportunity to pronoun�e on the validity of this regulation, in terms whi�h �an be summarized as follows�� n In spite of the fa�t that a fair part of its pre�epts should be understood as subsequently revoked by the Spanish Constitution, � those that �annot be �onsidered un�onstitutional remain in for�e. In parti�ular, �ourts have �onsidered the serious offen�e �alled �la�k of integrity� to be valid and have applied it in �ases of fraud in assessments. n Although the san�tions are �onstitutionally subje�t to the need for an A�t of parliament and the �egulation for A�ademi� �is�ipline, �95�, is merely approved by de�ree, said �onstitutional requirement is not applied retroa�tively. Therefore, the regulation is not affe�ted by said need for an A�t. n Although the �egulation for A�ademi� �is�ipline, �95�, has an obvious la�k of spe�ifi�ation -see, for example, the aforementioned �la�k of integrity� -, the �ourts have �onsidered it suffi�ient.
The majority of senten�es analyse san�tions lodged for fraud in examinations, either for impersonation, for substituting the exam for one done previously, for �onveying answers from outside or, lastly, for entering offi�es to obtain the text of the exams or to modify the results. The san�tions applied vary between the disqualifi�ation from studying at university for life and the temporary suspension for studying at a spe�ifi� university or in a spe�ifi� �entre for a �ertain number of years. It is worth observing that, given that the �egulation for A�ademi� �is�ipline, �95�, does not establish spe�ial periods of limitations, those in arti�le �32 of A�t 30��992, regarding Iss. �0 | �e�ember 2008 iSSn 1575-2275 http����digithum.uo�.edu Universitat �berta de Catalunya the legal system for Publi� Administrations and of the �ommon administrative pro�edure are applied. A serious offen�e su�h as the �la�k of integrity�, applied to fraud in examinations, expires after a period of two years.
In the appli�ation of the san�tion, the �onstitutional presumption of inno�en�e until proven guilty is applied in a watered-down version, typi�al of administrative san�tions.

CC. After the LoU
The L�U has done away with any express allusion to the dis�iplinary system for university students. Thus, the path is �lear for the �egulation for A�ademi� �is�ipline, �95�, to be substituted for another whi�h is more appropriate to our times.
However, diffi�ulties still exist. The main one �onsists in the need for an A�t of parliament to establish a law setting the main lines of any san�tioning system, although the a�tual law �ould delegate to the Administration, so that it regulate the detail afterwards.
As if things were not suffi�iently �ompli�ated, a progressively more diverse line of �ase-law with little do�trinal support has made the administrative relationships of spe�ial subje�tion exempt from the prin�iple of legality -the very relationship that exists between students and universities.
An impe��able appli�ation of the prin�iple of legality would, in my opinion, prevent universities from being able to regulate, even in their statutes, offen�es �ommitted by students and their �orresponding san�tions. �esponsibility would probably therefore reside in the parliaments of the Autonomous Communities, whi�h I understand would be responsible for establishing this san�tioning system for students, without prejudi�e to their being able to refer the regulation of the dis�iplinary system to the universities themselves.
However, only the regulatory law of the Basque Country's university system makes a mention of the student dis�iplinary system�� �The dis�iplinary regulations that the universities draw up and approve will suffi�iently guarantee the spe�ifi�ation of offen�es and san�tions, the proportionality between them and the right to a hearing of any expelled student so that de�larations may be formulated and proof put forward, prior to the resolution appli�able, with regard to the �ondu�t with whi�h they are �harged� (arti�le �2.2 of A�t 3�200�, of February 25, for the Basque University System). It is unlikely that su�h an impre�ise delegation would satisfy the aforementioned need for an A�t of parliament. �espite the �omplete absen�e of an authorizing law that �overs the aforementioned need for an A�t of parliament and with the possible �ase-law prote�tion of the relationships of spe�ial subje�tion, some university statutes have regulated the student dis�iplinary system or, rather, have in turn delegated the university government bodies to regulate it. This is the �ase, for example, of the university statutes of �alaga (arti�le �83 d.), Al�alá (arti�le ��6.3) or the Complutense (arti�le �52). I am not aware, however, that these universities have used this self-attributable regulatory fa�ulty.
In some a�ademi� regulations (for example, University of the Baleari� Islands, �aume I University) a rule is in�luded a��ording to whi�h �regardless of the dis�iplinary pro�edure against the offending student whi�h �ould follow, the demonstrably fraudulent realization of any of the exer�ises required in the assessment of any subje�t will be given the grade of 0 in the �orresponding exam�. 5 The regulations of the assessment system of the University of Cantabria is still more pre�ise, by alluding almost expli�itly to plagiarism�� �Any student who has or uses illi�it means during an exam, or who illegally attributes to himself or herself the authorship of a�ademi� works required for the assessment, will be given a qualifi�ation of 'failed' or '0', a��ording to whether they be literal or numeri�al qualifi�ations, respe�tively�. 6

disciplinary handling of plagiarism
A. Application of the Regulation for Academic discipline, 1954 �ven today, �ases of a�ademi� plagiarism have to be examined under the light of that in�luded in the �egulation from �95�.
Naturally, a distin�tion must be made between �ases in whi�h the student negligently omits �iting the sour�e of some of the information in�luded in their works and others in whi�h the omission is fraudulent and �ons�iously intends to attribute the works as their own. The fraudulent �hara�ter of the plagiarism will be more obvious if the tea�her (or �entre) has suffi�iently informed the student about the handling of external sour�es.
Both �slavish� and �partial� or fun�tional plagiarism (see the �ategories in �. 2.) �ould be �onsidered, a��ording to the �ir�umstan�es, as �la�k of integrity�. latter of rules for fraud in assessment �overed by some a�ademi� regulations 7 seems easy and does not require the text of the same to be for�ed. However, the nature of these rules lies somewhere between �poli�ing� and, stri�tly speaking, san�tioning. If the latter is �onsidered, its appli�ation would require the start of a penalization pro�ess. The rule's san�tioning powers would be more obvious if applied to partial plagiarism in a test in whi�h the rest of the student's work is �orre�t and has been �arried out personally, or if the plagiarism o��urs in only one of the tests subje�t to assessment.

C. evaluation and "undercover" sanctions
Lastly, one might �onsider the introdu�tion, in subje�t programmes, of evaluation �riteria that dedu�t some or all marks for plagiarism. �eferen�es to the negative �hara�ter of plagiarism will always be instru�tive and prevent students from using a supposed ignoran�e to prote�t themselves.
A different matter is the possibility that behind these evaluation �riteria there is an authenti� san�tion whi�h the professor has no authority to impose, as the �orresponding dis�iplinary pro�ess must be followed. In my opinion, it would be an assessment and not a san�tion in the following two �ases�� n If the dedu�ting of marks for a subje�t or work is proportional to the part of the work or works affe�ted by the plagiarism.
n If the dedu�tion is not proportional, but the re�ognition of the authorship and the authenti�ity in the work �onstitute express obje�tives of the subje�t. This would, in my opinion, justify a dedu�tion of marks proportionally higher than the �extent� plagiarized, as the plagiarism would dire�tly affe�t one of the �ourse's obje�tives.

d. Conclusions
Now that the diffi�ulty existing in the dis�iplinary regulation of student offen�es has been over�ome, the moment seems to have arrived to ta�kle the regulation of the student dis�iplinary system, either by the universities or the Autonomous Communities. It would be reasonable to in�lude fraud in exams and in other assessment elements in the offen�es spe�ified, and to �onsider plagiarism and �yberplagiarism as forms of fraud. This way the le�turing staff and the a�ademi� authorities �an deal with �yberplagiarism with more legal se�urity and the students would have maximum guarantees.
The dis�iplinary handling of �yberplagiarism does not, obviously, exhaust all the university poli�y destined to redu�e �yberplagiarism. The su��ess of university regulations on �yberplagiarism require at least two �omplementary poli�ies�� student edu�ation, whi�h should in�lude a definition that is suffi�iently �lear of what �yberplagiarism is and is not; and fa�ulty training, so that they define �yberplagiarism in a uniform way and suitably evaluate the �yberplagiarized tests or exer�ises. 7. For example, arti�le �0 of the a�ademi� regulations of the University of the Baleari� Islands�� ��egardless of the dis�iplinary pro�edure that �ould follow against the offending student, the demonstrably fraudulent realization of any of the exer�ises required in the assessment of any subje�t will be given a grade of 0 in the �orresponding exam�.