Plagiarism : The Quixotic Legal Crime

INTRODUCTION:

Some of you may be aware that one of my published note was mired in a controversy wherein I had suspected it to be plagiarised by a law firm. Though the matter has been resolved ( gladly the partner understood my concerns and pulled it down from their website), the reaction it garnered was somewhat surprising.

Apart from minor overlaps, copyright infringement and plagiarism are quite distinct. While it is normal for a layman to be unable to distinguish between the two, same is not expected from IP lawyers. Hence, I’ll take this opportunity to differentiate between these two, often interchangeably used terms.

Plagiarism_vs_Copyright_Infringement

Image Courtesy : Sheridan College

(I) The Legal v. Ethical Debate : Nature of the Two Wrongs

Plagiarism is usually an academic wrong and is not per se illegal (Hence, the paradoxical title of this post!) While, copyright infringement subsists even in non – academic settings and is illegal. It is a codified wrong under a country’s copyright law ( 17 U.S.C § 501 is the U.S. law on  copyright infringement while it’s Indian counterpart is Section 51 of the Indian Copyright Act, 1957)

Hence, it may be perfectly legal to plagiarize someone’s work, ethically it would be on shaky grounds. (especially if the plagiarist happens to an academic or a student writing a class paper)

(II) The Idea- Expression Dichotomy : Paramount Difference

The idea-expression dichotomy recognized by Article 9.2 of TRIPS is the paramount distinction between copyright infringement and plagiarism.

For a copyright infringement claim to be successful, it is imperative for the expression which embodies an idea to be copied. Whereas, plagiarism exists when ideas are stolen or passed off without due attribution even if there is no replication of the fixed expression.  (See here for Oxford’s definition of plagiarism)

Substantially paraphrasing an author’s sentence or quote is not copyright infringement but could be plagiarism if the main essence or idea behind the author’s work is lifted without due credit. Infact, there is an acute unawareness about paraphrasing being one of the types of plagiarism.

Oxford classifies paraphrasing as a type of plagiarism. It is defined as –

“Paraphrasing the work of others by altering a few words and changing their order, or by closely following the structure of their argument, is plagiarism if you do not give due acknowledgement to the author whose work you are using.”

Thus, two academic articles on the same topic may be strikingly different ( in terms of the expression conveying the idea) but may nevertheless be plagiarized if there is an intellectual hijack over an author’s research or the argument conveyed without due acknowledgement. Further

“A passing reference to the original author in your own text may not be enough; you must ensure that you do not create the misleading impression that the paraphrased wording or the sequence of ideas are entirely your own.”

Claiming proprietary ownership over an idea or the sequencing of ideas ( since the way an author chooses to structure his/her work is an idea in itself) without due attribution would be plagiarism.  Same holds true for a compilation of views and opinions of others, even if paraphrased  ( For more on academic plagiarism, read here)

(III) Remedies : When Suing is an Option?

Unfortunately, the girl’s name SUE is not a remedy for most types of plagiarism! Though it is a gross violation of academic integrity with potential serious consequences ranging from expulsion of students, to academics losing their jobs ( the ex- DU VC Dr. Dinesh Singh was charged with plagiarism by the Delhi University Teacher’s Association, though the charges were not proved) and an overall tarnishing of a scholar’s image.

Remedies for copyright infringement ( depending upon the jurisdiction) varies from civil, criminal to administrative. Hence, the advise of, ” Don’t wait and SUE” certainly holds weight for copyright infringement!

(See here for remedies under US Copyright law and here for remedies under Indian Copyright law)

CONCLUSION:

With recent advancement in technology, it is easy to spot copyright infringement. However, academic plagiarism (especially plagiarism by paraphrasing) due to it’s unpredictable nature is often difficult to spot and subsequently prove.

Given the degree of shrewdness required to camouflage an intentional academic plagiarism, I view the plagiarist as a  bigger pirate than the copyright infringer (not to say that copyright infringement is a lesser offence).

About Seemantani Sharma (My views are my own and they should be yours too)

Nomadic IP Lawyer. Penchant for reading, critically thinking and writing (at times ranting) about IP. Awaiting for the Eureka moment for clearing my perpetual muddled academic interest - the global politics of IP or its economics or their confluence Aspire to enrol for a Ph.D in international and comparative IP law in the next five years or so.
This entry was posted in Copyright Law, Indian Copyright Law, U.S. Copyright Law. Bookmark the permalink.

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