Discerning Plagiarism & Infringement: Practical Advice
An interesting question came up in my Advanced Copyright class last week—a student wanted to know the difference, if any, between plagiarism and copyright infringement. The class, a diverse group of law students and practitioners with varying degrees of copyright expertise, collectively scratched their heads. One answer to the question is that, yes, plagiarism and infringement are quite different. Another answer is more complex: maybe they aren’t that different—maybe sometimes, they can rise from the same issue or occurrence.
I imagine that most students, from elementary through graduate school, are instructed to cite their sources, by both individual teachers and school mandate. Because these lessons begin at such an early age, there is less motivation to understand the reasoning behind them. So, why are these instructions given? Are elementary schools trying to protect nine-year-olds from falling into the trap of copyright infringement, or are they more concerned with extralegal issues?
Generally, plagiarism raises moral concerns. It is, “an act or instance of using or closely imitating the language and thoughts of another author without authorization and the representation of that author’s work as one’s own, as by not crediting the original author.” Judge Richard Posner adds that, “plagiarism requires that the copying, besides being deceitful in the sense of misleading the intended readers, induce reliance by them.”
This is where the issue of morality emerges. For example, if someone appropriated information from this article without citing to either the IP Brief or myself, and readers subsequently believed that it was the copier’s work, then it would be plagiarism. While I may be greatly incensed by someone holding out my work as his or hers, I would likely have no legal cause of action. In fact, if I attempted to sue a plagiarist (under whatever cause of action), they could then countersue for defamation—a risk many authors would want to avoid. In most plagiarism cases, the best-case scenario for the wronged party is to hope that the plagiarist’s institution takes disciplinary action—a failing grade, suspension, expulsion.
The question then becomes, at what point does the ethical of issue plagiarism enter the legal sphere of copyright infringement? According to Mark Fowler, in his blog Rights of Writers, “Plagiarism does not amount to copyright infringement unless (a) the plagiarist has republished copyrightable expression of another, and (b) the amount of copied expression exceeds the boundaries of fair use.” For example, let’s say someone cut and pastes my entire article (no fair use defense) and puts it into their blog, neither citing to the original nor attempting to garnish a license. In this case, I have been plagiarized and my rights have been infringed.
While these plagiarism/infringement cases arise from time to time, infringement almost always carries greater consequences. In the example above, suppose I had registered a copyright in this article prior to infringement. As the wronged party, I would much rather be able to sue for attorney’s fees, actual damages, or statutory damages than see my infringer slapped on the wrist for plagiarism.
At the beginning of his blog, Fowler offers readers the following, courtesy of Black’s Law Dictionary, “True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not courts. Plagiarism occurs when someone – a hurried student, a neglectful professor, an unscrupulous writer – falsely claims someone else’s words, whether copyrighted or not, as his own. Of course, if the plagiarized work is protected by copyright, the unauthorized reproduction is also a copyright infringement.”
So, whether you are writing your first book report or authoring your twentieth book, take care to cite your sources and, when in doubt, get a license.