1. ORI’s 1994 Plagiarism Policy: A Reconsideration Plagiarism in Research: Common Pitfalls and Unforeseen Consequences CUNY, 6 February 2014 David E. Wright Ph.D. Director, Office of Research Integrity David.Wright@hhs.gov

2. Plagiarism from ORI’s Regulatory Perspective  Bound by the definition and process in our regulation, 42 CFR Part 93  Serious and Time-Consuming—consequently, we only pursue significant cases  Rigorous burden of proof to defend findings against appeals—therefore, we don’t always make findings  Very different from the way research institutions and journals can handle alleged plagiarism

3. ORI’s Plagiarism Policy: Background  ORI’s current plagiarism policy was published in the ORI Newsletter, Vol. 3, No. 1, December 1994.  The PHS research misconduct regulation in effect at that time was 42 CFR 50 Part A (1989).  That regulation listed plagiarism as one of the elements in its definition of misconduct, but did not define plagiarism.

4. ORI’s Plagiarism Policy: Background  The widely accepted working definition of plagiarism in the research community at that time and the one used by Research Integrity Officers and institutions reviewing allegations of plagiarism under their misconduct procedures was: ‘using the words of another, without that person’s knowledge or permission, and claiming them as one’s own.’

5. ORI’s 1994 Statement on Plagiarism ORI’s 1994 Policy went well beyond the “common law” definition: “ Although there is widespread agreement in the scientific community on including plagiarism as a major element of the PHS definition of scientific misconduct, there is some uncertainty about how the definition of plagiarism itself is applied in ORI cases. ” Wright 2.1

6. ORI on Plagiarism,1994 “ As a general working definition, ORI considers plagiarism to include both the theft or misappropriation of intellectual property and the substantial unattributed textual copying of another's work. It does not include authorship or credit disputes. ” Wright 2.1

7. ORI on Plagiarism, 1994 “ The theft or misappropriation of intellectual property includes the unauthorized use of ideas or unique methods obtained by a privileged communication, such as a grant or manuscript review. ” Wright 2.1

8. ORI on Plagiarism, 1994 “Substantial unattributed textual copying of another's work means the unattributed verbatim or nearly verbatim copying of sentences and paragraphs which materially mislead the ordinary reader regarding the contributions of the author. ORI generally does not pursue the limited use of identical or nearly-identical phrases which describe a commonly-used methodology or previous research because ORI does not consider such use as substantially misleading to the reader or of great significance.” Wright 2.1

9. ORI on Plagiarism, 1994 “ Many allegations of plagiarism involve disputes among former collaborators who participated jointly in the development or conduct of a research project, but who subsequently went their separate ways and made independent use of the jointly developed concepts, methods, descriptive language, or other product of the joint effort. ” Wright 2.1

10. ORI on Plagiarism, 1994 “ The ownership of the intellectual property in many such situations is seldom clear, and the collaborative history among the scientists often supports a presumption of implied consent to use the products of the collaboration by any of the former collaborators. For this reason, ORI considers many such disputes to be authorship or credit disputes rather than plagiarism. Such disputes are referred to PHS agencies and extramural institutions for resolution. ” - ORI Newsletter, Vol. 3, No. 1, December 1994 Wright 2.1

11. From “Working Definition” to Policy  As the text of this statement makes clear, it was crafted, cautiously, as a “working definition” of plagiarism under 42 CFR 50 Part A.  It was never issued as an NPRM or printed in the Federal Register  It later morphed into the “ORI Policy on Plagiarism,” as it now appears on the ORI website.

12. Making Findings of Plagiarism under the 1994 Policy  The implied standard(s) necessary for making a finding of plagiarism as misconduct under the 1994 policy are that the plagiarism be “theft or misappropriation of intellectual property,” or that plagiarism of text involve “substantial unattributed textual copying” that “materially misleads” the reader as to authorship.

13. Exclusions and Thresholds  Exclusion: “authorship or credit disputes”  Threshold: “ORI generally does not pursue the limited use of identical or nearly-identical phrases which describe a commonly-used methodology or previous research because ORI does not consider such use as substantially misleading to the reader or of great significance.” 

14. Consequences: ORI’s Findings from 1992 include relatively few plagiarism findings

15. Reasons Behind ORI’s 1994 Position on Plagiarism 1.Jurisdictional limitations with regard to self- plagiarism and ghost-writing. 2.Staff resources were limited. 3.ORI’s findings are published, and therefore essentially immortal.

16. Reasons Behind ORI’s 1994 Position on Plagiarism 4. It is a difficult matter to assess the significance of many, often relatively minor cases of plagiarism, from ORI’s distance from the case. 5. Often, cultural factors make it difficult or impossible to prove that plagiarism was an intentional effort to deceive or mislead, a critical element of proof of misconduct.

17. Reasons Behind ORI’s 1994 Position on Plagiarism  Reasons #s 4 and 5 made ORI reluctant to try what it considered relatively minor cases of plagiarism before the Department Appeals Board (under 42 CFR 50 Part A) or an Administrative Law Judge (under 42 CFR Part 93) when it was unsure whether it could meet the standards for significance or intent.  Given limited staff and legal resources, ORI chose to focus on serious Fabrication or Falsification.

18. Research Community Reaction to ORI’s 1994 Plagiarism Policy  When institutions made findings of misconduct and ORI did not make its own findings, RIOs often felt “hung out to dry,” because their institutions saw ORI’s decision not to make finding as criticism of the institutional process.  Further, respondents often claimed in such cases that ORI had “exonerated them” proving that their institutions had erred.

19. Research Community Reaction to ORI’s 1994 Plagiarism Policy  With the notable exceptions of some major institutions that have adopted ORI’s definition and policy on plagiarism, most institutions have a lower bar for pursuing plagiarism than has ORI. This dissonance between research institutions’ and ORI’s approaches to plagiarism has been difficult for both.

20. Plagiarism in 42 CFR Part 93  A new PHS research misconduct regulation, 42 CFR Part 93, became effective on 16 June 2005. It too includes plagiarism as an act that could constitute research misconduct but this time defines it.  93.10: (c) Plagiarism is the appropriation of another person's ideas, processes, results, or words without giving appropriate credit.

21. Plagiarism in 42 CFR Part 93  This new definition including as it does “ideas, processes, results” as well as words is broader than the definition assumed when the ORI plagiarism policy was written.

22. P lagiarism in 42 CFR Part 93  The new definition of plagiarism subsumes the elements of the 1994 ORI policy but is clearer, eliminating the need for discussing “intellectual property” or “unique methods” obtained through “privileged communication,” or worrying about thresholds for appropriation of another’s text to be considered plagiarism.

23. Plagiarism in 42 CFR Part 93  The current PHS regulation, 42 CFR Part 93, is also much clearer as to the standard required for making a finding of research misconduct and that standard is “ significance.”  (“Significance” is one of three necessary elements of proof. The misconduct must also be committed intentionally, knowingly or recklessly and the finding must be supported by a preponderance of the evidence.)

24. Significance in 42 CFR 93 for findings and sanctions  93.104 Requirements for findings of research misconduct. “(a) There be a significant departure from accepted practices of the relevant research community;  93.408 Mitigating and aggravating factors in HHS administrative actions. “(c) Impact. Did the misconduct have significant impact on the proposed or reported research record, research subjects, other researchers, institutions, or the public health or welfare?

25. ORI’s 1994 Plagiarism Policy  Should ORI withdraw the 1994 plagiarism policy as superseded by 42 CFR Part 93?  Consistency with ORI positions on “curbstoning,” last updated 04-20-2011