For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Thursday, 27 November 2003

WHY REPRODUCTION IS A BAD IDEA

In 1994, Dr Mina Alikani of Cornell University Medical Centre published a paper in the journal Human Reproduction detailing her research on how a weakness in the wall of the inner cell mass of an embryo may lead to a greater likelihood of the embryo developing into a set of identical twins. Unsurprisingly, she was not best pleased when, in 2000, she noticed that seven paragraphs of her paper had been reproduced in another publication, Human Reproduction Update. The article had four named authors, Mr N Abusheika, Dr O Salha, Mrs V Sharma and Mr P Brinsden, though the piece was actually written by the first two doctor and the latter two, as senior authors, merely had a supervisory role. An apology appeared in the journal condemning such plagiarism but also acknowledging that due to the vast number of academic publications available, it was unreasonable to expect senior authors to comprehensively check for such wrongdoing. Subsequently, the General Medical Council brought an action for serious professional misconduct against the authors, stating that such conduct was unethical and unprofessional, though the action against the senior authors was dropped and only that against Abusheika and Salha was continued. The trouble was, it was impossible to tell which of the two doctors was responsible for the addition of those paragraphs and so, instead of the charge being conscious copying, it was couched in terms of failing to adequately review the paper. The GMC, against the advice of its legal adviser, found both guilty of serious professional conduct, highlighting the lack of honesty and integrity of the two and holding that:

“All authors are responsible for the contents and substance of any paper to the extent that they have not taken reasonable steps to discharge their responsibilities. To accept the benefits of authorship while evading the responsibilities for any deficiencies in the paper is unacceptable and dishonest."

The case was appealed to the Privy Council, which found that the GMC had been wrong in its approach. It had concluded that one or the other of them had acted dishonestly and, because the doctors did not give evidence (since they admitted serious professional misconduct) so the GMC had no evidence of which of them was responsible for the copying, it found them both guilty of dishonesty. This violated “fundamental principle of fairness that a charge of dishonesty should be unambiguously formulated and adequately particularised”, even if there was a high degree of negligence on the part of the non-copying author. Nonetheless, even the non-copying doctor was guilty of profession misconduct for letting the publication go ahead, despite the fact that the plagiarism was only of Dr Alkani’s expression of the state of the art in the field, rather than of her actual research. However, the GMC’s sentence of 3 months suspension from the register for the pair was reduced to a reprimand because the 3 month sentence was intended to highlight the seriousness of dishonesty but the Privy Council had found that dishonesty could not be proved.

The IPKat notes that professional codes of conduct, such as that of the GMC can supplement copyright and other IP protection and tailor the conditions for liability to the needs of the profession in question. Another prominent example is the Press Complaints Commission’s Code of Practice. In this case, while there is no need for dishonesty or even negligence to be shown for copyright claims to succeed, the GMC is able to afford special censure to copying that it considers to have been done in circumstances that are detrimental to the profession.

Live-action embryos here
Twins here, here and here


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