Phil Friedman

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Copyright Violation Is Not the Same As Plagiarism

Copyright Violation Is Not the Same As Plagiarism

Imitation Is Not Always a Welcome Compliment ...


Preface: As noted in the first installment of this series, I am not a lawyer. I am a marine industry technical and business consultant. However, I've spent more than 30 years working as a professional staff and freelance writer and editor. Consequently, over the years, I've done substantial research on the topic, which I would like to share with you in this highly distilled compendium. Although by no means to be considered legal advice or opinion, that which I present to you here has passed muster with more than a few intellectual property attorneys.


Copyright protection is established as a matter of law ...


Copyright (and patent) protections in U.S. law are firmly rooted in the Nation's Constitution.  (United States Constitution, Article I, Section 8) :

"The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

According to the United States Copyright Office,

"The United States copyright law is contained in chapters 1 through 8 and 10 through 12 of title 17 of the United States Code. The Copyright Act of 1976, which provides the basic framework for the current copyright law, was enacted on October 19, 1976, as Pub. L. No. 94-553, 90 Stat. 2541. The 1976 Act was a comprehensive revision of the copyright law in title 17." Similar copyright protection is extended worldwide to intellectual property under International Treaty.


Copyright protection is accorded to original works of authorship fixed in any tangible medium of expression ...

Works of authorship are those which fall into one of the following categories:

1) literary works

2) musical works, including any accompanying lyrics

3) dramatic works, including any accompanying music

4) pantomimes and choreographic works

5) pictorial, graphic, and sculptural works

6) motion pictures and other audiovisual works

7) sound recordings

8) architectural works


Under specific circumstances, "fair use" may be made of portions of a work, without first securing permission ...

Even when a work is protected by copyright, "fair use" may be made of portions of that work without permission of the author, provided that use is for the purposes of comment and criticism, news reporting, teaching, scholarship or research. Such fair use is not precisely defined in U.S. copyright law, but is left to the Courts to be determined by taking into  account:

1) The purpose of use, that is, whether commercial or educational

2) The nature of the work itself

3) The percentage used vs the total work

4) The effect of the use on the potential market for, or value of the work

Thus, if I quote Kurt Vonnegut from Cat's Cradle,

"Beware of the man who works hard to learn something, learns it, and finds himself no wiser than before ... He is full of murderous resentment of people who are ignorant without having come by their ignorance the hard way ..."

for the purpose of this "educational" article, I have not violated the author's copyright, or that of his publisher ― as it would be considered "fair use".



However, if I were to copy verbatim several chapters, and publish them, for pay, under my own byline as a short story, I would without doubt be violating the author's and possibly the publisher's copyrights.

Some cases of violation of copyright are very clear. For example, a recent Huffpost Business article by JD Gershbein, The LinkedIn Groups Have Become Ghost Towns, was lifted in total by a would-be author and posted, without attribution and without permission, under that would-be author's byline on LinkedIn. An incontrovertible case of violation of copyright. (Also a paradigm instance of plagiarism ― but more on that later.)

Copyright, however, protects only the particular expression of ideas, not the ideas themselves ...

Again, according to the U.S. Copyright Office, which administers the Copyright Act, copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, irrespective of the form in which it is described, explained, illustrated, or embodied in a work. Therefore, if you paraphrase, but do not copy verbatim someone's ideas, in your own words, you are not likely to be considered to have violated the original author's copyright.

For example, suppose I wrote, under my own byline and without further attribution, that,

"One needs to be careful of a man who labors to learn something, does so, and then discovers he is not any wiser than he started out ― for such a man will be angry at those who have achieved blissful ignorance sans breaking a sweat."

In such a case, I would not be violating Vonnegut's copyright, although I might be using his arguably unique ideas without attributing them to him, and so might very well be committing plagiarism.

Plagiarism is a matter of ethics, not a matter of law ...

Whereas the meaning of copyright is well defined it law, the determination of what is plagiarism, and what is not, is nowhere near as clear. Most educational institutions have policies forbidding plagiarism by students and faculty. And some professional associations also delineate policies against plagiarism. However, there is no universally accepted definition of what constitutes plagiarism, and moreover, some people argue that there is no single standard that applies clearly in all cases.

For my part, I believe we can recognize plagiarism in virtually all of its manifestations. I may not be able to tell a Mallard from a Muscovy, but I can certainly tell a duck when I see one walk, swim, and quack. That's the way it is with plagiarism.

Northwestern University (Evanston, IL) has one of the Nation's leading schools of journalism.  In its written policy on Academic Integrity, Northwestern explicitly defines "plagiarism" as:

"...submitting material that in part or whole is not entirely one's own work without attributing those same portions to their correct source."

That's pretty clear, but not exhaustive of the topic. We might, for example,  ask whether, unlike violation of copyright, plagiarism can involve using the ideas and concepts of others and presenting them as one's own, even when the exact wording of the originating author are not used.



Or we might argue, as some do, that no ideas and concepts are entirely original, and so nobody is properly an originator or creator of them. However, I think that is all pretty much of a dodge.

I submit that we can add a number of factors that, when present in total or part, work mightily to support a judgment of plagiarism:

1) Intent to conceal- when it is clear that the current author actively worked to hide the connection of the current work to the original author or creator.

2) Duplicitous citation - when the current author cites the original author of creator, but in such a way as to most likely go unnoticed.

3) Refusal to remediate - when the current author refuses to acknowledge his or her intellectual debt to the original author or creator, or to correct the omission of a proper citation or credit, when confronted and asked to do so.  

Cases of plagiarism are decided in the court of reader opinion...

Because plagiarism an ethical, not a legal concept, and there is no statute law governing it, an author whose work has been plagiarized cannot pursue action in the courts. Unless, of course, the plagiarism in question is accompanied by violation of copyright. Which it sometimes is.

It bears repeating that plagiarism can occur with or without concurrent violation of copyright. And violation of copyright can occur with or without plagiarism.

For example, if you take a substantial passage verbatim from a work that is in the "public domain" (not protected by copyright), and present that work, without citation, as your own, that is not violation of copyright. But it is an instance of plagiarism.

Or, if you take a substantial passage verbatim from a copyright work, and use it without permission, albeit with a proper citation, that is a violation of copyright,although not an instance of plagiarism.

Or again, if you take a substantial portion of a work by another author, rewrite it in your own words, and then present it as your own original work, that is

not a violation of copyright, but it could very well be judged to be plagiarism.

 To simplify things, the following is a table of possible permutations:



The concept of plagiarism should not be broadened to such a degree that it becomes absurd ... and we become neurotic ...


Protection of intellectual property is important to society, for without it, the inclination to freely share information and ideas will evaporate. And ultimately, society and education will suffer.

To recap, the protections of copyright,and issues pertaining to violation of copyright are well defined in law and international treaty. However, plagiarism is not. So, when it comes to asserting or judging that a work, or part of a work has been plagiarized, a good deal more leeway has to be allowed, and a much larger measure of common sense employed. Otherwise, the concept of plagiarism, which reaches to the deepest reaches of intellectual honesty and professional integrity, falls into caricature and absurdity. — Phil Friedman


Author's Notes:  This post on the differences between copyright violation and plagiarism was written, at least partially, in response to prodding from online author and friend, David B. Grinberg. If this piece is worthwhile in any way, David deserves the credit. Of course, any errors or omissions are entirely my own.

This article is the second of a series that I am now planning to pull together into a brief monograph on the subject. The next installment will look at available options for seeking remedy in violation of copyright and instances of plagiarism. If you would care to read he first of this series or the two preceding polemics on plagiarism, they can be found at:

"Writer's Concise Guide to Copyright, Trademark, Patent & Plagiarism - I"

"So Why Is Plagiarism Such A Big Deal?"

"In Defense of Plagiarism?"

If you enjoyed this post, you might also want to take a look at:

"Conversations With My Wife About My Writing"

"The Day I (Almost) Met the President   ̶ ̶  My Brief Sojourn as a Washington Press Corps Impostor"

If you'd  like to receive notifications of my writings on a regular basis, follow me, Phil Friedman, on beBee.

Feel free to "like" and "share" this post and my other articles — whether on beBee, LinkedIn, Twitter, Facebook, or Google+. I ask only that you credit me properly as the author, and include a live link to the original work.


About me, Phil Friedman:  With 30 some years background in the marine industry, I've worn numerous hats — as a yacht designer, boat builder, marine operations and business manager, marine industry consultant, marine marketing and communications specialist, yachting magazine writer and editor, yacht surveyor, and marine industry educator. I am also trained and experienced in interest-based negotiation and mediation. In a previous life, I taught logic and philosophy at university.    

 

The (optional-to-read) pitch:  As a professional writer, editor, university educator, and speaker, with more than 1,000 print and digital publications, I've recently launched an online program for enhancing your expository writing: learn2engage — With Confidence. My mission is to help writers and would-be writers improve the clarity of their thought and writing, master the logic of discussion, and strengthen their ability to deal confidently with criticism and disagreement.


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For more information, click the image immediately above. Or to schedule an appointment for a free 1/2-hour consult email:info@learn2engage.org.                                                 

                                                                                

Text Copyright © 2016 by Phil Friedman — All Rights Reserved    

Images Credits:  Phil Friedman, FreeDigitalPhotos.net, and Google Images

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#COPYRIGHT #PATENTS #WRITER'SGUIDE #WRITING #PUBLISHING #TRADEMARK #INTELLECTUALPROPERTY  #UNDERSTANDINGCOPYRIGHT


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Comments
Lada 🏡 Prkic

Lada 🏡 Prkic

4 years ago #15

#17
I entirely agree. As you said, the concept of plagiarism should not be broadened to such a degree that it becomes absurd. The most of us write about topics that have already been written hundreds of times. To write in a new way about familiar things is increasingly becoming a challenge, but I think there's always some sort of new "lands" to explore and I see myself as an explorer. 😊

Phil Friedman

Phil Friedman

4 years ago #14

#14
Thank you, Bernard, for saying so. Cheers!

Phil Friedman

Phil Friedman

4 years ago #13

#13
Lada \ud83c\udfe1 Prkic, as I said in the piece, I think we have to avoid becoming neurotic about plagiarism. Very few of us present truly unique and original ideas, but rather build upon a large body of knowledge and opinion that has preceded our own work. Consequently, I've come to think more and more about the three tell-tale signs of plagiarism listed in the article. Violation of copyright on internet-published images remains a difficult one for me. For it is often impossible or at least impossibly time consuming to trace back an image to its creator, as Google, for example, credits the last user of the image, and may end up with the same image attributed to half a dozen different "creators." Personally, I try in good faith to check for the creator's credit, when I am not using a free or paid-for image. If I can't do that successfully, I will credit GoogeImages. The point is that the images used are not being incorporated into a work for pay. And clearly, if there is a creator, that creator has not been sufficiently concerned to ask Google to drop the image from GoogleImages. When, however, an advertisement is involved, I completely avoid using any image which is not either mine or for which I've received permission to use. Cheers!

Phil Friedman

Phil Friedman

4 years ago #12

One of the essential elements of the Berne Convention is adherence to the principle of the automatic creation of a "creator's copyright" upon the publication of any work that falls within the covered categories. Registration of copyright generally bears upon the issue of how readily and how quickly the holder of a violated copyright can secure remediation through the courts of the relevant signatory nation(s). It is important not to confuse registration of copyright (a specific legal action) with the de facto creation of copyright.(automatic accrual under the terms of the Berne Convention).

Lada 🏡 Prkic

Lada 🏡 Prkic

4 years ago #11

Stealing the words of others already have become the serious problem in the academic communities. Even one of the ministers in the Croatia’s government is recently accused of plagiarism in his Ph.D. theses, by a prominent Croatian scientist Ivan Đikić. Giving credit when needed is responsible behavior in both life and social media. When it comes to the latter, I think that many people don't understand what it means and they assume that everything on the web is free. This especially applies to the use of photos and images. We all do this when sharing pictures or memes without giving the credit. The more I read about that, the more I became “paranoid” when writing blog posts. Though I write in my own words, I’ve become more concerned about unintentionally copying some others’ ideas. I’ve even started using some apps for checking posts for plagiarism. Phil, what do you think about that?

Phil Friedman

Phil Friedman

4 years ago #10

#11
my pleasure, Vincent and Milos.

Milos Djukic

Milos Djukic

4 years ago #9

Thank you Phil Friedman!

Phil Friedman

Phil Friedman

5 years ago #8

#6
Don, most copyright laws throughout the "civilized" world are uniform by treaty. For list of international treaties, see: https://www.linkedin.com/pulse/writers-concise-guide-copyright-trademark-patent-phil-friedman

Phil Friedman

Phil Friedman

5 years ago #7

#6
Don, most copyright laws throughout the "civilized" world are uniform by treaty. For list of international treaties, see:

don kerr

don kerr

5 years ago #6

Very useful Phil Friedman I wonder if the Canadian copyright law is similar. I shall have to do a little investigation although I suspect we mirror our big brother to the south.

Phil Friedman

Phil Friedman

5 years ago #5

#1
Thank you, Franci Hoffman, for the kind words. Cheers!

Phil Friedman

Phil Friedman

5 years ago #4

#2
Thank you, Frederico, for the kind words.

Javier 🐝 CR

Javier 🐝 CR

5 years ago #3

Thanks for sharing it !

Federico Álvarez San Martín

Great!

Franci 🐝Eugenia Hoffman, beBee Brand Ambassador

Phil, I am pleased that you published your article on beBee. Very useful content for the introduction of the new beBee publishing platform.