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:
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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.
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Text Copyright © 2016 by Phil Friedman — All Rights Reserved
Images Credits: Phil Friedman, FreeDigitalPhotos.net, and Google Images
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