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Friday, 3 September 2010

Plagiarism: do we know what it means, do we know why we need it?

There are certain terms, frequently used in connection with IP matters, the meaning of which is utimately unclear. In my mind, no term better meets this description than "plagiarism" or "plagiarist". Try as I have, this Kat has never found the term defined in any statute -- nor I am familiar with any case law that has sought to explain it (I do recall that the Israeli Supreme Court used it, in a decision given many years ago, without however shedding any further light on its meaning). Nevertheless, the term has found its way into common and widespread parlance. Wikipedia offers the following observation:
"Plagiarism is not the same as copyright infringement. While both terms may apply to a particular act, they are different concepts. Copyright infringement is a violation of the rights of a copyright holder, when material protected by copyright is used without consent. On the other hand, the moral concept of plagiarism is concerned with the unearned increment to the plagiarizing author's reputation that is achieved through false claims of authorship."
Then there are the following guidelines taken from here, a site dedicated to preventing "plagiarism."
"What is Plagiarism?
Many people think of plagiarism as copying another's work, or borrowing someone else's original ideas. But terms like "copying" and "borrowing" can disguise the seriousness of the offense:
According to the Merriam-Webster Online Dictionary, to "plagiarize" means
• to steal and pass off (the ideas or words of another) as one's own;
• to use (another's production) without crediting the source;
• to commit literary theft;
• to present as new and original an idea or product derived from an existing source.
In other words, plagiarism is an act of fraud. It involves both stealing someone else's work and lying about it afterward.
But can words and ideas really be stolen? According to U.S. law, the answer is yes. The expression of original ideas is considered intellectual property, and is protected by copyright laws, just like original inventions. Almost all forms of expression fall under copyright protection as long as they are recorded in some way (such as a book or a computer file).
All of the following are considered plagiarism:
• turning in someone else's work as your own;
• copying words or ideas from someone else without giving credit;
• failing to put a quotation in quotation marks;
• giving incorrect information about the source of a quotation;
• changing words but copying the sentence structure of a source without giving credit;
• copying so many words or ideas from a source that it makes up the majority of your work, whether you give credit or not (see our section on "fair use" rules).
Most cases of plagiarism can be avoided, however, by citing sources. Simply acknowledging that certain material has been borrowed, and providing your audience with the information necessary to find that source, is usually enough to prevent plagiarism. "
I thought about the uncertainty surrounding the meaning of the term in reading an article that appeared on 1 August in the New York Times. Entitled "Plagiarism Lines Blur for Students in Digital Age" and under the byline of Trip Gabriel here, the article described the purported challenges facing those who combat plagiarism, particularly in the university setting. The following sections of the article are noteworthy.
1. "... [M]any students simply do not grasp that using words they did not write is a serious misdeed. It is a disconnect that is growing in the Internet age as concepts of intellectual property, copyright and originality are under assault in the unbridled exchange of online information, say educators who study plagiarism."
2. "Perhaps more significant, the number who believed that copying from the Web constitutes “serious cheating” is declining — to 29 percent on average in recent surveys from 34 percent earlier in the decade."
3."In an interview, [Susan D. Blum, an anthropologist at the University of Notre Dame] said the idea of an author whose singular effort creates an original work is rooted in Enlightenment ideas of the individual. It is buttressed by the Western concept of intellectual property rights as secured by copyright law. But both traditions are being challenged. “Our notion of authorship and originality was born, it flourished, and it may be waning,” Ms. Blum said. She contends that undergraduates are less interested in cultivating a unique and authentic identity — as their 1960s counterparts were — than in trying on many different personas, which the Web enables with social networking."

Are you confused about the difference between copyright infringement, violation of moral rights, and plagiarism? If so, not to worry--so am I.
1. To the extent that plagiarism is about unauthorized copying of a protected text, then copyright law protects the rightsholder and any reference to plagiarism seems redundent and unnecessary.
2. Ditto for a violation of the right of attribution under moral rights. The fact that a country, such as the U.S., does not provide for a general right of attribution to authors of copyrighted works is a matter of legislative amendment or creative use of various common law rights regarding the relationship between a work and the identity of its creators.
3. Grounding plagiarism within the sphere of ethics and morality limits the potential force of its authority. Appeals to ethical justification to shape collective conduct is difficult at best, problematic at worst. Indeed, when data shows only minority support for condemning plagiarism, at least in some on-line settings, raises the question of the source and legitimacy of the ethical position itself.
4. Intertwining plagiarism within the canon of conduct of defined communities (such as academia) provides a limited solution for the legitimacy problem, but it is not a justification for positing a general prohibition against plagiaristic conduct, even assuming that a consensus could be found for the the meaning of the term.
When all is said and done, however, I suspect that two things will remain to be true with respect to plagiarism. First, there will not be any agreement on the meaning of the term; and second, the term will nevertheless continue to be be used in various settings to achieve a variety of results.


Lawrence B. Ebert said...

Merely fyi, the IPBiz blog has over 600 posts on the topic of plagiarism, including distinctions between plagiarism and copyright infringement.

As to IP, note, for example

Plagiarism by patent attorney leads to malpractice claim

Suariter said...

Judge etc Richard A. Posner says in his book The Little Book of Plagiarism, Pantheon Books, New York, 2007, that not all plagiarism is infringement in IPR and not all infringement in IPR is plagiarism. So, here is one that knows what it´s all about:-)

James Wagner said...

Protecting the moral rights and copyright of the author will not protect against plagiarism where the original author is a willing participant.

I suspect that in the majority of 'serious' cases of plagiarism this is the case (someone gives the student their paper from a previous year, or prepares a submission for a fee).

rodrigo borges carneiro said...

Congratulations on your post on this serious topic.

Just one comment as to your conclusion that to the extent that plagiarism is about unauthorized copying of a protected text, then copyright law protects the rightsholder and any reference to plagiarism seems redundent and unnecessary.

In the situation of a work in public domain plagiarism can still occur , at least linked to the concept of fraud and moral rights.


Rodrigo Borges Carneiro

Jonathan Bailey said...

Just wanted to say thank you for addressing this issue on your site. If there's anything that I can do to help clear anything up or if you just want to talk about it sometime, drop me a line.

Thanks again for putting this issue out there!

Neil Wilkof said...

Thanks to all of you for the comments and links. (Then) Professor Posner unsuccessfully tried to teach me Torts many years ago (my fault, not his). I shall try to track down his volume and see if I do a better job regarding plagiarism.

Permit me one further question: So at the end of the day, is plagiarism a legal wrong; and/or a breach of a social convention (academic or otherwise); and/or a metaphor for breach of ethical conduct; and/or something else?

Michael Factor said...

Plagarism is an ethical wrong and a breach of social convention.

Confusion arises where complainants sue plagiarizers in court.

The whole issue of copyright does, however, need overhauling.

I suspect the Israel Supreme Court case you are referring to is Sefi Rivlin satarizing Chaplain's little tramp character. I am not sure it was one of their better decisions however.

Anonymous said...

I am always suspicious of people mentioning theft in the context of IP, because conceptually often the acts that are called copyright theft lack the essential incidia of real theft. Theft, at least as a UK concept, means dishonestly appropriating the property of another with the intent to deprive them permanently thereof.

Copyright is at heart a right to prevent another from copying. So-called copyright theft very rarely involves seeking to deprive the proprietor of the right to prevent others from copying. In fact, it invites the proprietor to exercise its rights.

A wrongly decided entitlement dispute deprives the proprietor permanently of its property. If done dishonestly (and therefore, as you suggest below, involving fraud) that could reasonly be thought of as a theft. In fact, as the Theft Act expressly says that property includes incorporeal property, in the UK it would be entirely proper to call this a theft. But not copying per se.

Mary Wyburn said...

They may be using electronic methods now to cut and paste, but these issues have been around for some time (ie definitions of plagiarism and the misunderstandings between it and copyright). Good sources are: Green S Plagiarism norms and the limits of theft law (2002) 54 Hastings Law Journal 167; Sterns L Copy wrong: Plagiarism process property and the law (1992) 80 California Law Review 513; Buranen L and Roy A (eds) Perspectives on Plagiarism and Intellectual Property in a Postmodern World New State University of New York Press 1999.

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