Are Essay Writing Services Legal, Ethical or Cheating?

The potential misuse of essay writing services for plagiarism by students raises a host of potential problems for such business. This report addresses the resulting ethical issues, concerning the potential for cheating and its consequences, the political issues, such as the potential for undermining academic institutions and promoting success driven by wealth rather than merit, and legal issues, in the form of copyright actions and the potential for liability for negligently caused economic loss.
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Businesses such as Write Enterprise Ltd face a host of ethical, political and legal threats which emerge from the potential for their use in plagiarism. Plagiarism is an elusive concept, though Hannabuss has offered a useful definition, ‘the unauthorised use or close imitation of the ideas and language/expression of someone else. It involves representing their work as your own… with little or no acknowledgement of the borrowing and the source.’[1] Essay sites, through the provision of targeted model answers, clearly have the capacity to facilitate plagiarism, and it will be shown that this gives rise to moral censure, may be increased by political developments, and has legal ramifications in the form of necessary copyright protection and limitation of liability for economic loss.
Ethical Issues: The Potential for Misuse
A plethora of ethical considerations arise from essay writing businesses, for both the writers and the students involved. Although plagiarism may not be a criminal offence, it is widely viewed as unethical ‘cheating’. Its contravention of the moral rules of society, is reflected in the fact that it contravenes academic regulations and professional rules, failure to comply with which can lead to drastic consequences, such as students being excluded, loss of reputation and breaches of contract.Yet it is clear that plagiarism is easier than ever before in an electronic age where documents can be copied and pasted on the internet without due attribution, and is widely regarded to be on the increase[2]. A study[3] of students in the UK revealed that 50% of students would be prepared to plagiarise in order to avoid failing a course, 62% would feel guilty about plagiarising, and 10% would have no regrets.
In light of the propensity for cheating, there are ethical concerns for a writer in an essay business that his research may be misused for the purposes of academic dishonesty. On the one hand, it is possible to view model answers as another source that a student has at his disposal, such as a textbook and a journal. It is ultimately the intentions of the client that determine whether unethical results follow and a student may equally plagiarise from these sources if he is so minded. On the other hand, it is clear that the focused and targeted response given to specific questions means that abuse is more likely. However, one cannot ignore the many clients who use essay writing services legitimately to further own learning.. Any questioning of the ethics of such businesses must account for the positive impact they have on guiding those in difficulty.
The public perception of essay writing services is undermined by questionable ethics, and legitimate clients may be deterred. It is therefore vital for such businesses to clearly state their ethical policy and present good practice guides on how the research should best be used.
Political Issues: Increasing Demand & Propensity for Harm
If students lack research skills and knowledge by blindingly relying on the services of essay writing services without conducting work of their own, it could be that the economic and social role of educational establishments in providing capable employees is consequently undermined.As Foster[4] remarks, ‘For western education establishments, given the economic function they are intended to serve, then allowing plagiarism to go unchecked could have serious implications for the value of qualifications and the economic well-being of the countries concerned.’
There are also political challenges for essay writing services that present opportunities for plagiarism. Political factors, such as the increasing costs of higher education, greater student numbers, increased pressure in light of difficult job markets, perceptions of degrees as economic investment products rather than learning opportunities, and the greater influx of international students, have identified as causes for the increase in plagiarism[5]. Such factors may also increase demand for legitimately commissioned research, as the cost of failing increases.

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Legal Issues: Copyright and Economic Loss
Copyright is a critical area for the law for essay services, as it is important that the work commissioned is not misused either by the client or the writer. The Copyright, Designs and Patents Act 1988 (CDPA) provides automatic copyright protection for original literary work produced by British citizens[6]. Even if a writer infringes copyright, the essay site may still retain it in the commissioned work[7], and to do so it is crucial for the business to ensure that appropriate copyright assignments and waivers of moral rights were included in the written agreements commissioning the work. The CDPA specifically permits the assignment of copyright in works which have not yet been created and this can be exploited by the businesses by providing appropriate contracts to writers, ensuring that businesses retain copyright for the work they commission. However, moral rights[8] in particular represent a hazard for essay sites, as they remain with the author and cannot be assigned[9]. It is recommended, therefore, that in contracts with writers essay sites expressly require them to forfeit their moral rights.
It would also be beneficial for copyright not to be granted to the client. The danger here lies in ‘implied licenses’, arising where copyright material is provided in the knowledge that it is to be reproduced for specific purposes, a licence being implied that it can be used for that purpose. It is crucial that essay sites exclude the operation of implied licences by giving clients express licences strictly limited to the purpose of using the commissioned work as a basis for conducting their own independent work, precluding sharing to others.
A possible threat that could emerge to essay services is the law pertaining to negligent misstatements occasioning economic loss[10]. Liability arises when a duty of care is imposed on the provider or professional advice where he is entrusted to use reasonable care and skill by the recipient and it is reasonable for the recipient to rely thereon[11].The key ingredient of the principle, that a person holds himself out as having special expertise thus inviting reasonable reliance, clearly applied to essay writing services. Furthermore, it is that this tortuous liability survives the making of a contract, and that the recovery of damages includes loss of future earnings[12], particularly relevant if a client is expelled for academic dishonesty and claims for loss of career prospects. Although a disclaimer of liability may be sufficient[13] to preclude liability for negligently occasioned economic loss, this may be found to be subject to the requirements of reasonableness in the Unfair Contract Terms Act 1977[14].The absence of alternative means to protect clients is a critical factor distinguishing liability here from the position where disclaimers are held to be effective[15], and could equally be applied to the essay service market. It is critical therefore, in addition to making good on anti-plagiarism and quality promises, for essay sites to stress that students should seek further advice before submitting and relying on the work conducted for them.
By adopting a strong ethical and moral standpoint, as well as robust terms and conditions, many of the potential legal threats can be averted. The more an essay site does to demonstrate that it does not invite ‘reliance’ on its products, by providing guidelines on how to use research and avoid plagiarism for example, the less likely it is to fall into the trap of professional advice occasioning economic loss. It has also been shown that copyright protection, with effective express licences, is crucial to limit terms of use and writers’ moral rights that may undermine the service offered.By adopting this approach, an essay business can withstand increasing political pressures and ethical criticism to offer a quality research service for the benefit of its clients.
BBC News, ‘Student Plagiarism on the Rise’
David Bainbridge, Intellectual Property (8th Edition Pearson Longman, London 2010)
JISC ‘Deterring, Detecting and Dealing with Student Plagiarism’
Lunney & Oliphant, Tort Law Text and Materials (4th Edn OUP, New York 2010)
Hughes & McBride, ‘Hedley Byrne in the House of Lords: an interpretation’ (1995) LS 15(3) 376-389
Peter Foster, ‘Plagiarism in Higher Education’ (2004) No 18
Stuart Hannabuss. ‘Contested Texts: Issues Of Plagiarism Library Management Volume 22 (2001)
Underwood, J. & Szabo, A. Academic offences and e-learning: individual propensities in cheating. (2003) British Journal of Educational Technology 34, 467-478
[1] Stuart Hannabuss. ‘Contested Texts: Issues Of Plagiarism Library Management Volume 22 (2001)
[2] BBC News, ‘Student Plagiarism on the Rise’
[3] Underwood, J. & Szabo, A. Academic offences and e-learning: individual propensities in cheating. (2003) British Journal of Educational Technology 34, 467-478
[4] Peter Foster, ‘Plagiarism in Higher Education’ (2004) No 18
[5] JISC ‘Deterring, Detecting and Dealing with Student Plagiarism’
[6] David Bainbridge, Intellectual Property (8th Edition Pearson Longman, London 2010) p.39
[7] ZYX Music GmbH v King [1995] FSR 566 The requirement for the work to be original does not preclude derivative work from being protected, the key issue being whether sufficient skill and labour has gone into the creation of the new work, and crucially this means copyright may subsist in a work even though it infringes copyright in another work.
[8] CDPA 1988 ss. 80-83 including the right of the author to be identified where asserted, and the right to object to derogatory treatment of the work in the form of addition, deletion and alteration where the work is made public. The right to be identified undermines the confidentiality of the service essay sites offer, and the moral right in relation to derogatory treatment inhibits client’s use of the work as a basis of their own if they intend to publish.
[9] David Bainbridge, Intellectual Property (8th Edition Pearson Longman, London 2010) pp.120-145
[10] Lunney & Oliphant, Tort Law Text and Materials (4th Edn OUP, New York 2010) pp.417-451
[11] Hedley Byrne v Heller & Partners [1964] AC 465
[12] Esso v Mardon [1976] EWCA Civ 4
[13] As on the facts of Hedley Byrne
[14] Smith v Bush [1990] UKHL 1. In holding that the disclaimer did not satisfy the requirement, regard was had to the facts that the plaintiff in that case was a private non-expert individual, and the practice of failing to get further advice in this sector was widespread. Both of these factors are relevant to the essay market, providing advice to non-experts who, it could be assumed, are unlikely to seek further advice.
[15]Hughes & McBride, ‘Hedley Byrne in the House of Lords: an interpretation’ (1995) LS 15(3) 376-389

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