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One must give credit to others' work
January 4, 2001
The Iranian
Among the harbingers of economic development at the time of the Industrial
Revolution were the twin principles of protection of property and enforcement
of contracts, and where property was concerned the notion of protecting
inventors through patent law and authors through copyright law were probably
the most ingenious inventions of all. There is no argument that the promotion
and attainment of the arts and sciences requires that those who are asked
to invest of their time, mind and capital to be protected from those whose
definition of entrepreneurship and freeloading is rather indistinct.
For a writer, I suppose, no part of the U.S. Constitution should be
regarded as precious as the freedom of expression guaranteed by the First
Amendment. There is an equally sacred provision that affects the writer
set and that is Article I, section 8, clause 8, that impresses upon the
Congress "To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries." "The utility of this power,"
wrote Madison in Federalist No.43, "will scarcely be questioned. The
copyright of authors has been solemnly adjudged ... to be a right of common
law." This then is the cradle from which springs, among other things,
our copyright law. It recognizes that when labor and capital is applied
to ideas and they are made to find expression in the written word that
the product ought to be immune for some time from trespass by freeloaders,
so that the author may enjoy the fruits of his efforts.
By contrast, the Iranian Constitution (1979), is not very clear on this
subject. Article 46 provides expressly that "everyone is the owner
of the fruits of his legitimate ... labor." Article 22 provides that
property rights are inviolate. And, Article 13 clearly obligates the government
to realize "the attainment of self-sufficiency in scientific, technological,
industrial, agricultural, and military domains."
On the other hand, there is a social good that comes from the diffusion
of knowledge through the written word and therefore the law itself provides
for instances of fair use of another's work. For example, under Title 17
of the U.S. Code, section 107, one may copy another's work if it is done
for the purpose of criticism, comment, news reporting, teaching, scholarship,
or research. However, any instance of fair use of another's work must not
be of a commercial nature or for-profit educational purposes; or be excessive
in amount; or detrimentally effect the potential market for or value of
the copyrighted work. Within the context of fair use, there is also the
notion that morality alone, if not a legal obligation, requires that one
acknowledge the source from which one appropriates. The absence of proper
attribution results in plagiarism, which itself is in the first instance
an act of dishonesty, theft, and then a perpetration of a fraud on the
public, by which the taker passes or palms off another's work as his own.
Here is an example of what I mean. In an article that I wrote and was
published in 1996 in Small Island, Big Politics (Amirahmadi, editor),
I wrote (p.118): "In international law, factors or considerations
based on geography or location, such as contiguity, security interest,
strategic value, inclusion in, or proximity to areas of national jurisdiction
do not confer title to an offshore island. These considerations, however,
like proximity, do provide a basis for allotting an island to one state
rather than another, either by agreement between the parties, or by a decision
not necessarily based on law ... Regardless, in 1929, the head of the Eastern
department at the British Foreign Office had argued that Britain should
consider conceding Great Tonb to Iran because 'it is indeed geographically
a Persian island' (emphasis added)."
I noted my sources for this epiphany in two endnotes. One read: "Island
of Palmas (United States/Netherlands) (Permanent Court of Arbitration
at The Hague, Award of 4 April 1928), reprinted in J.B. Scott, ed., The
Hague Court Reports (2nd ser., 1932), p.11. For a discussion of the
use of the proximity principle by Britain to justify the allotment of certain
islands in the Persian Gulf to sheikhs and territories controlled by or
friendly to Britain, see Mirfendereski, The Tamb Islands Controversy,
1887-1971, pp.117-128." The other endnote read: "F.O. 371/13777
(1929), Persia E4369/19/34: G.W. Rendel's minutes, 10 September 1929."
Here is the misappropriated version of the same text and endnotes by
Pirouz Mojtahed-Zadeh, an Iranian researcher based in London. He wrote:
"Factors of considerations based on geographical proximity of locational
contiguity of national maritime jurisdiction do not confer entirely factors
like proximity, however, do provide a basis for allotting an island to
one state rather than another, either by agreement between the parties,
or by a decision not necessarily based on law. The Permanent Court of Arbitration
at The Hague's award of 4 April 1928 on the island of Palmas between the
United States and the netherlands is perhaps a good example of this. It
is also noteworthy that the British had also based their decision of allotment
of islands in the Persian Gulf some time on this principle. Moreover, in
the case of the island of Greater Tunb, in dispute between Iran and Great
Britain on behalf of the Shaikh of Ras al-Khaimah in the first half of
the 20th century, once a high ranking official of British Foreign Office
rules that 'it (Great Tunb) is indeed geographically a Persian island'."
His endnotes on this subject were as followes: Island of Palmas
(United States/Netherlands), Permanent Court of Arbitration at The Hague,
reprinted in J.B. Scott, ed., The Hague Court Reports, 2nd ser., 1932,
p.11." and "Persia E4369/19/34; Minutes of G.W. Rendel of Eastern
Department, dated 10 September 1929, F.O. 371/13777." See, State
and Territoriality in The Persian Gulf (Curzon Press, 1999), p.219
and notes 3 and 4 appear on pages 265-266.
One can only marvel at the coincidence that produced Mojtahed-Zadeh's
articulation of the same thoughts, in similar language, practically one
hundred percent verbatim, and supported by an identical research of identical
sources cited in the same manner, recapitulating basically this writer's
thought processes, research, and labor.
In relation to the emerging legal regime of the Caspian Sea, this observer
noted on this site ["Lost
at sea"] in October 1998 that it mattered not if the Caspian were
"viewed as a sea, lake, or a bath tub." Any use by another of
this phrase in an analogous context would require some attribution to the
origin. By the same token, when discussing the toponymy of the Tonb islands
in the Persian Gulf, if one were to identify the name tunb with the word
for "hill" in the Tangestani dialect of southern Iran, then it
behooves one to cite the source of this designation as Pirouz Mojtahed-Zadeh
as the one who first made that connection and publicized it.
What is accomplished by attribution is to signal a degree of recognition
for the precedential, if not original, work of another. In the minimum,
moral obligation suggests this and in most instances rules governing plagiarism
and academic integrity require it. However, it is possible, if not very
likely, that persons laboring in the same field of knowledge, who share
the same subject-matter interest and a common vocabulary, to arrive independently
at similar formulations or conclusions, sometimes phrased similarly. And
maybe at times the similarity is no coincidence at all but for the clever
disguises, turns of phrase, vicarious citations, and other subterfuge.
And then there are times that little similarities, when added up, yield
a disturbing picture that cannot be explained away as being an innocent
byproduct of some mystical correspondence between two parallel universes,
each occupied by one of twins. The preponderance of the evidence would
suggest misappropriation. The problem with petty theft, here and there,
is that it is not very noticeable because a theft is incremental and seemingly
inconsequential. Committed by a clever thief the taking can be artfully
disguised. Grand larceny, on the other, is harder to commit successfully,
because it is an endeavor that is glaring in its results and much harder
to hide.
In every civilized society theft is a felony and the proof of such a
transgression should be beyond a reasonable doubt and to a point of moral
certainty. Likewise, in most civil societies, there are, in varying degrees,
consequences that are visited also upon those who receive stolen goods,
either knowingly or inadvertently. A charge of theft cannot be brought
lightly, because such an accusation, if false, would do irreparable harm
to a person's integrity and honor. Therefore, in most civilized societies,
truth alone is a complete defense against libel and slander. With that
in mind, the foregoing example is placed into evidence.
Author
Guive Mirfendereski is a professorial lecturer in international relations
and law and practices law in Massachusetts.
