Buying Academic Essays: Evaluating Legitimacy under the Fraud Act 2006

Introduction

This essay will explore the implication of the Fraud Act 2006 on the activity of student buying academic essays from online providers. It will address the meaning of fraud under the Fraud Act 2006 and determine whether the act of online purchase of academic essays constitutes fraud.

This essay will explore the activities involved in purchasing academic essays online. Accordingly, it will raise a few key issues relevant with the question in hand. It will explore whether the act of purchase concerned with research. It will explore ownership of the essays. It will address the kind of relationship exists between the student and the academic institute. Based on the analysing, this essay will determine the extent of applicability of the Fraud Act 2006 in answering whether buying academic essays is a method of research or fraud.

This essay will conclude with a summary of the findings of the essay and appropriate answers to the essay question in hand.

Whether buying academic essays a method of research or fraud under the Fraud Act 2006?

The Fraud Act 2006, s1 provides that a person is guilty of fraud falsely represents or fails to disclose information. According to section 2, false representation is when a person makes the representation, which is not true or is misleading and he knows or ought to know that. Such representation is as to fact or law and as to the state of mind of the person. According to section 3, failing to disclose includes dishonestly failing to disclose information to another person where he is legally bound to do so and he intends, thereby, to make a gain for himself. The Fraud Act 2006 does not provide definition of dishonesty. This will present a difficulty of determining the question in hand when read with other aspect that would be covered in this essay later. Monaghan, however, observes that the Act 2006 does not define what a legal duty is. Its Explanatory Notes provides that it includes the duties under oral and written contracts. As per a Law Commission report, the duty could be derived from statute, such as in insurance contract, and a transaction is based on utmost good faith. Fraud will be committed if there was a contract and there was a failure to disclose information. Utmost good faith is interpretative. This principle prohibits concealing information that a party knows to draw the other party into a bargain from his or his ignorance of this fact and his belief to the contrary. For commission of fraud, the most important element is provided under section 5. The term “gain” includes gain in terms of money or property. In the light of this legal description about what constitutes fraud, this essay will examine whether buying academic essays constitutes a method of research or fraud.

The question in hand concerns the issue of academic dishonesty, which could be any act to gain an undue advantage, for example, cheating in exam, or plagiarism. This is an intentional act of fraud where a student could claim credit for other’s work or effort without authorisation. Academic dishonestly could also include forgery of academic documents, where a person could assist a student in the dishonest acts. It could also include purchasing articles from the internet, purchasing ghost-written essay from online providers. Before going into details about listing acts that could come under academic dishonestly, the issue needs to be broken down into understanding the act in question and the law, which is the Fraud Act 2006. What are the activities involved in purchasing academic essay? Are they concerned with research? Who owns the end result? What kind of relationship exists between the student and the academic institute? What is the extent of applicability of the Fraud Act 2006?

Are essays concerned with research?

After the Copyright and Related Rights Regulations 2003, there is a distinction made between research and private study. Research constitutes a process of search and investigation to discover facts and determine new conclusions by undertaking critical study of a particular subject. Private study, on the other hand, constitutes applying mind to acquire knowledge. In research, there is an end product. If this view is applied to an academic essay, writing the essay cannot be merely confined to applying mind to acquire knowledge. It requires undertaking research to answer the research question in hand. There is an end result, which is in the form of the finding of the research conducted to write the essay. This, research carried out by undergraduate to write an essay will be treated as a research. In this regard, using the term “essay” does not seem suitable to the research effort put in by the student in tackling a research question.

Further, the research work discussed here will constitute a non-commercial purpose. Whether the research is for a non-commercial purpose, it must have been determined at the time the research was carried out. Applying this notion to academic essay, it cannot be treated as for commercial purposes. If sole purpose is scientific research to contribute to development of knowledge and understanding, the research will fall within the stipulated exception. This is suitably applicable to academic essay, which is a research solely conducted development of knowledge and understanding. Reading the observation above, academic essays could be treated as research work, which contributes to knowledge and understanding of the writer.

Who owns the end result?

In order to determine the ownership of the research product, the Copyright, Designs and Patents Act 1988 must be referred here. Section 11 of the Act 1998 provides that the author of a work is the first owner of the copyright. If the work is made by an employee, then the employer is the first owner. This represents the “work for hire” doctrine where any work created by the employee during the time of employment belongs to the employer.

Applying the legal provision, whether there is an employee-employer relationship between the online provider and the student. An employee works under an employment contract. A person is classed a worker if there is a contract (oral or written) or some arrangement to personally do work or services for a reward. The reward is for money or for a benefit in kind. This is also provided under Section 230 of the Employment Rights Act 1996. It provides that a worker works under a contract of employment or any contract, whether express or implied, where the other party is not by virtue of the contract occupies the status of a client or customer.

In purchasing academic essays, the online provider may be a worker if it personally works for the student to complete the essay. It can be an employee in case they have a contract setting out the terms and conditions, regarding the kind of work, payment, delivery terms, or remedy for breach. In most cases, an online provider may write the essay based on order from the student subject to terms and conditions agreed between them. Accordingly, there is an employer-employee relationship and thus, whatever work created by the employee, which in this case is the online provider, is owned by the student being the employer. Further applying the work for hire doctrine, the essay is owned by the student.

Copyright can also be transferred through a written assignment, which would represent a sale or transfer of the copyright. This is provided under the Copyright, Designs and Patents Act 1988, s90, which treats copyright as personal or moveable property transferable through assignment. Such assignment is limited to “one or more, but not of the things” the owner has exclusive right to do; or to “part, but not the whole, of the period for which the copyright is to subsist”. The owner has moral rights over the copyright, which he can keep or waive. Such rights include to be identified as the author, object to the manner of presentation of the work, or object to any changes to the work. Further, section 77 of the Act 1988 provides that owner has the right to be identified as author and according to Section 78, such right has to be asserted. In case he does not assert, there is no infringement. Applying the provisions of the Act 1988 above, the first author, which is the online provider in this case, can transfer its copyright over the essay to the student. It can also waive the moral rights attached to the essay and it can refuse to be identified as the owner of the copyright over the essay.

Will the kind of relationship between the student and the academic institute suffice to establish fraud?

The relationship between a student and the academic institutions is open to many interpretations. Giving a contractual relationship status between them may appear supportable as it may be the most appropriate governance mechanism concerning the relationship. The law of contract and its contractual remedies may suitable govern the relationship. Alternative argument is that this relationship is not subject to great scrutiny. The source of the contractual relationship, if the relationship is treated contractual, may not be easily determinable. Another aspect to this area is whether students could be treated as consumers. There is a financial exchange in terms of the fee, which entitles the student to possess a particular product, which is the degree or to a certain level of services from the university staff and resources. Thus, there is a direct connection between the payment of fee and the development of the students’ behaviour and attitudes, which are associated with customers. The UK has seen a cultural shift in the manner students see themselves in relation to the studies and society perceive them. Media, policies of institution, government, parents, or career adviser have been constructing students as consumers. This notion has been developed individually. The 2003 case ruled that after spending five years contributing to the cost of tuition fees, students were recognised as consumers and they must be compensated financially in case the level of service from the university is not met as per their expectation.

Reading this kind of consumer oriented relationship between the parties along with the practices of purchasing online essay with respect to the provisions of the Fraud Act 2006, this legislation might not be suitable to prove fraud. In particular regard to the question in hand, it must be noted that case laws likely indicates that they are reluctance to be involved in such cases involving plagiarism. The court in Hines v Birkbeck College, deemed this issue to be a matter for academic judgement, which is outside the competence of the court. In a study conducted by Draper, Ibezim and Newton in this area by analysing the behaviours of the conduct in question against the Act 2006, they found that the services are available in exchange for a fee. This indicates that there is a consumer-service provider contractual relationsion. They thus determine that academic fraud does not constitute a criminal offence as the students falsely represent the online work as their own. They do not have any immediate gain of money or property directly, but academic credit.

What is the extent of applicability of the Fraud Act 2006?

In the light of the discussion here, it is observed that buying academic research cannot be considered fraud as the element of attaining gain is absent. The Act 2006 states that false representation or failing to disclose will constitute fraud only when the person making it or failing to disclose does so to make a gain for himself and such gain is only extended to gain in money or property. If these provisions are read with buying academic essays, proofing fraud may be difficult as the person does not have any gain on money or property. As observed earlier, academic essays may constitute research, which is not for commercial purposes. Academic essays, as such, are owned by the students who have made the arrangements for creating the work.

Ormerod and Laird observe that the Fraud Act 2006 provides for a general fraud offence, which offers certain advantages. It shifts the focus from whether there was false representation to whether the dishonest conduct was sufficiently fraudulent. However, it may present an overbroad general offence, which is subject to the definition of dishonesty. It may present a vague principle. Terming it a general offence may cover wide range of elements, including deceit, deceptive or non-deceptive breach of trust, non-disclosure of material facts, unfair advantage, or conflict of interests, this would create a challenge to differentiate between offenses in respect to their nature, seriousness, or of whether they have been or when they were committed. This view was presented in the conclusion made by D Ormerod in “Criminalising Lying” [2007] Crim, LR 193, at 218.

Findings and Conclusion

For commission of fraud, there must be false representation or dishonestly failing to disclose information to another in order to receive a gain in terms of money or property.

This essay has addressed the activity of buying academic essays online in respect to notion of academic dishonesty. It explored important issues of whether academic essay is research, the ownership of the research result, which is the essay, the relationship between the student and the academic institute, and the applicability of the Fraud Act 2006.

The finding of this essay suggests that essay is research as it involves undertaking research to answer relevant research questions, and there is an end result. Applying the provision of the Copyright, Designs and Patents Act 1988, the finding of this essay suggests an existence of an employee-employer relationship between the online provider and the student. Applying the work for hire doctrine, the student is the owner of the essay purchased from the online provider. Further, any copyright attached to the essay is owned by the student. Also, such copyright could be transferred to the student, according to the Act 1988 by the first author, which is the online provider in this case, and can waive its moral rights.

Research conducted here suggests a trend of treating student-university relationship as one of contractual given the mechanism employed in redressing issues between them. Thus, for a fraud in a contract, the three elements of false representation, dishonestly failing to disclose information and gain must be present. The finding of this essay suggests that buying academic research cannot be considered fraud as the element of attaining gain. This essay observed that the general offence attached to fraud creates a limitation to its application to specific offence. Reading this observation with the finding the buying the essays online lacks the element of gain, the provision of fraud is deficient to tackle the offence in question.

1. Jonathan Herring, Criminal Law: Text, Cases, and Materials (Oxford University Press 2014).
2. Nicola Monaghan, Criminal Law (Oxford University Press 2018).
3. Ozlem Gurses, Marine Insurance Law (Taylor & Francis 2015).
4. Jean D. M. Underwood and Lee Farrington-Flint, Learning and the E-Generation (Wiley 2014).
5. Charlotte Waelde et al, Contemporary Intellectual Property: Law and Policy (Oxford University Press 2014).
6. Ibid.
7. Ibid.
8. Judy S. Kuan, Offshore Business Sourcing Special Report on Law & Strategy (WorldTrade Executive, Incorporated 2004).
9. GOV.UK, ‘Employment status’ accessed 17 October 2020 < https://www.gov.uk/employment-status/employee>.
10. Ibid
11. The Employment Rights Act 1996, s230.
12. GOV.UK, ‘Ho copyright protects your work’ accessed 17 October 2020 .
13. Francine Rochford, The relationship between the student and the university’ (1998) 3 Austl. & NZJL & Educ. 28.
14. Joanna Williams, Consuming Higher Education: Why Learning Can't be Bought (Bloomsbury Academic 2013).
15. Hines v Birkbeck College [1985] 3 All ER 15.
16. Michael J. Draper, Victoria Ibezim and Philip M. Newton, ‘Are Essay Mills committing fraud? An analysis of their behaviours vs the 2006 Fraud Act (UK)’ (2017) 13(1) International Journal for Educational Integrity 3.
17. David Ormerod and Karl Laird, Smith, Hogan, and Ormerod's Text, Cases, and Materials on Criminal Law (Oxford University Press 2017).

Continue your exploration of Business idea and target market with our related content.

Legislation

The Copyright, Designs and Patents Act 1988

The Copyright and Related Rights Regulations 2003

The Employment Rights Act 1996

The Fraud Act 2006

Cases

Hines v Birkbeck College [1985] 3 All ER 15.

Books

Gurses O, Marine Insurance Law (Taylor & Francis 2015)

Herring J, Criminal Law: Text, Cases, and Materials (Oxford University Press 2014)

Kuan JS, Offshore Business Sourcing Special Report on Law & Strategy (WorldTrade Executive, Incorporated 2004)

Monaghan N, Criminal Law (Oxford University Press 2018)

Ormerod D and Karl Laird, Smith, Hogan, and Ormerod's Text, Cases, and Materials on Criminal Law (Oxford University Press 2017)

Waelde C et al, Contemporary Intellectual Property: Law and Policy (Oxford University Press 2014)

Williams W, Consuming Higher Education: Why Learning Can't be Bought (Bloomsbury Academic 2013)

Journals

Michael J. Draper, Victoria Ibezim and Philip M. Newton, ‘Are Essay Mills committing fraud? An analysis of their behaviours vs the 2006 Fraud Act (UK)’ (2017) 13(1) International Journal for Educational Integrity 3.

Rochford F, The relationship between the student and the university’ (1998) 3 Austl. & NZJL & Educ. 28.

Others

GOV.UK, ‘Employment status’ accessed 17 October 2020 .

GOV.UK, ‘Ho copyright protects your work’ accessed 17 October 2020 .