Demystifying plagiarism, the legal way

17 Aug,2012

 

By Nandita Saikia

 

Can one be jailed and fined if convicted?
 

All you wanted to know about plagiarism but didn’t know who to ask. We posed a few questions to Nandita Saikia and requested her for a response sans the legalese

1. Is plagiarism a crime? As in, does copying of substantial portion of a published work written by someone without attribution and without permission become a punishable offence? What exactly is the punishment?

Plagiarism alone involves copying another person’s ideas without attributing them, and is not a crime by itself although it is considered unethical.

 

If plagiarism involves copying not only ideas but also a substantial portion of a copyrighted work without attribution and without permission, it would amount to both copyright infringement and the violation of the ‘special right’ of the author to be credited.

 

Copyright infringement and the violation of an author’s right to be credited are both civil wrongs and criminal offences. A civil suit may be instituted, and criminal charges may also be filed.

 

In a civil suit, the remedies which may be obtained are: injunctions to restrain further infringement, damages, the rendition of accounts of profit, and the delivery up of both infringing copies of the work and the plates used to make them. If required, certain administrative orders may also be obtained to assess the extent of infringement.

 

If criminal charges are filed, a convicted infringer is liable to be imprisoned for between six months and three years and to be fined between Rs 50,000 and Rs 2 lakh, for the first offence. This punishment is enhanced for subsequent convictions.

 

2.Does attribution without permission for text or photographs or graphics (for instance: Photograph courtesy xyz) amount to an infringement of copyright? And if it is an offence, what is the punishment?

Assuming the work is protected by copyright, in most cases:  It is infringement to publish a work without permission.  It is both infringement and a violation of moral rights to publish a work without permission and without attribution. It is a violation of moral rights to publish a work with permission and without attribution — (possibly) unless the author has agreed not to be attributed. The remedies available to those authors whose right to claim authorship has been violated are similar to those available in cases of copyright infringement as described in response to question 1.

 

3.Assuming an article is written and has taken some vital research data or information from another article (and this information is not easily available or is not publicly accessible), but the information is presented in a different language and different from the one already published. Will this be considered plagiarism and is it infringement of intellectual property?

It would amount to plagiarism if the ideas of another author were used without credit. It is also likely that it would amount to plagiarism if the research of another author was used without credit.

 

However, if the language used in the later article was completely different from that used in the original article, it is unlikely that the subsequent article would infringe the copyright in the original article.

 

Depending on the circumstances, the later article may violate the moral right of the author of the original article to be credited for his work.

 

4.In a typical writer-publication relationship, who owns the copyright in the absence of any written contract on it… the publication or the writer/photographer/artist? What if the writer/photographer/artist are freelance? And what if he/she is an employee?

The employer generally owns copyright in the employee’s work for the purpose of dissemination through the employer’s publication and similar publications. For all other purposes, the employee owns the copyright.

 

However, a freelance journalist would ordinarily be the first owner of copyright in his work unless he signs an agreement to the contrary. Ownership may vary depending on whether or not the work is commissioned.

 

The commissioner generally owns the copyright in a commissioned photograph.

 

To a large extent, the ownership of copyright in a work is determined by contract. This area of the law contains a number of caveats and exceptions, and it is extremely difficult to make generalisations.

 

5.What about ideas and concepts? And page designs and headlines?

Ideas and concepts are not protected unless expressed and ‘fixed’. Original page designs may be protectable as artistic works if they are distinctive. Headlines are unlikely to be protectable, although it may be possible to argue that especially distinctive, original headlines are protectable.

 

6. And lastly, what is the legal standpoint on plagiarised advertising… visuals and copy? Also, television and films?

In broad strokes, the general principles relating to infringement apply across the board regardless of the nature of the work. If a work is protected by copyright, the permission of the copyright owner is usually required to do things like reproduce or adapt the work. Also, authors have the right to be claim authorship of their work.

 

Nandita Saikia

The terms ‘plagiarism’ and ‘infringement’ are often used interchangeably although they are different.  Plagiarism itself is primarily an ethical issue, which involves using the work of another author without crediting them. The right not to be plagiarised is not recognised by statute, except to the extent mentioned in Section 57 of the Copyright Act (which gives authors the right to claim authorship of their works, among other things).

 

Plagiarism may occur independently of copyright infringement. This is because any use of a work without crediting its author would be plagiarism. However, copyright infringement can only occur if the earlier work copied from is protected by copyright. So, for example, copying from a very old work whose copyright has expired would be plagiarism but not infringement.

 

Also, plagiarism may involve merely copying the ideas which another person has expressed in their work either without crediting them or using their words. If plagiarism occurs without copying or adapting the actual words of the author of the earlier work, it is unlikely that the plagiarism would also amount to copyright infringement.

 

Further, it is worth bearing in mind that it works both ways. If the earlier work was protected by copyright, copying or adapting any substantial part of it without permission would infringe the copyright subsisting it even if its author was credited. In other words, the unauthorised, substantial reproduction or adaptation of a copyrighted work is copyright infringement even if its author is credited.

 

As such, copyright infringement and plagiarism generally occur simultaneously only if the words of an earlier work are copied or adapted without permission and without attribution, and the earlier work is protected by copyright.

 

Copyright itself subsists in certain works such as books, films and music. As a general rule, the initial owner of the copyright in a work is its author (although this is subject to several exceptions).

 

Copyright owners have the exclusive right to do things like reproduce, adapt, translate and publish their works, or to allow others to do so. These exclusive rights are collectively called copyright, and vary in their specifics depending on the kind of work.

 

In most cases, doing anything which is the exclusive right of the copyright owner without his or her permission amounts to copyright infringement, which is both a civil wrong and criminal offence. As such, a civil suit may be instituted (usually seeking to obtain damages and an injunction to restrain further infringement).

 

In addition to this, Section 63 of the Copyright Act states that convicted infringers are liable to be imprisoned for between six months and three years and to be fined between fifty thousand and two lakh rupees, while Section 63A stipulates an enhanced penalty for second and subsequent convictions.

 

Apart from copyright, the Copyright Act also recognises the right of an author to be credited for his work via Section 57 of the Copyright Act which, among other things, grants authors the ‘Special Right’ to claim authorship. If this right is violated, remedies similar to those obtainable for copyright infringement may be sought.

 

Widely referred to as a moral right, the Section 57 right to claim authorship is perpetual, is independent of copyright, and remains unaffected by transfers of copyright ownership. Thus, it could be considered to be similar to the right not to be plagiarised, although it is not identical to it.

 

Nandita Saikia is a media and technology lawyer practising in New Delhi

 

Plagiarism: No good word, this
 

While the reasons to plagiarise can be debated, and argued, what remains essential is editorial integrity to see it as a bad practice

By Ananya Saha

 

Fareed Zakaria has opened a Pandora box after being accused of plagiarism. Editorial sanctity is being now being questioned when it comes to using plagiarized content. With internet becoming a major source of stories filed by journalists, it has actually become difficult to keep a tab on plagiarized material. Indian media has been, time and again, put under scanner for plagiarism.

 

The business daily, Mint has addressed the issue of ‘plagiarism and fabrication’ in its ‘MintCode’ clearly: ‘We don’t copy the work of others. And we don’t make things up. We do not plagiarize, meaning that we do not take the work of others and pass it off as our own.’ In fact, Mint does not transmit news releases in their original form. “A story that appears in our paper and has plagiarized work from a press release is a serious violation of our Code of Conduct.” If any of its own journalists’ or columnists’ work is plagiarized, Mint asks them to notify the editor, deputy editor, and immediate editor. According to the code, any Mint reporter and writer have to use original content, language and phrasing.

 

While the ‘MintCode’ is clearly charted out on its website and The Economic Times too has a code of ethics on its website, not many newspapers have such a clear ‘code’ charted out.

 

What is also important to understand is that such code of ethics is also bypassed by journalists who succumb to pressures of deadline.

 

Deccan Chronicle uses software that alerts the desk when more than eight words are plagiarized. A T Jayanti, chief editor of Deccan Chronicle, said: “You do not need a policy on something so blatantly wrong! Our team is aware that they can be suspended, and can even lose their jobs.”

 

Chandan Mitra, editor and managing director of The Pioneer, has come across few columnists who have plagiarized content while writing for his paper: “The columnists were found guilty, and we stopped their columns as soon as we got to know. We take a hard line against such practice. If there is a complaint, we prefer to run our checks and if found guilty, we do not have to think twice before stopping their columns.”

 

Mr Mitra insisted that Fareed Zakaria’s case is an alarm bell, and the Indian newspaper industry needs to be more cautious, especially “when the laws of the land are not as stringent.” He also feels that because of the internet, it is easier to track down if the article or any written piece has been extracted as is from its original source.

 

While the reasons to plagiarize can be debated, and argued, what remains essential is editorial integrity to see it as a bad practice.

 

Vikas Mishra, Editor, Lokmat Samachar said: “Nobody in our newspaper is authorized to copy-paste from any article. Never in the history of Lokmat has anyone plagiarized. If there is an article worth mentioning, we always mention the source or attribute the quote in our write-ups.”

 

When asked if plagiarism is more rampant in the regional and vernacular newspapers, Mr Hari Mohan Mishra, news editor, Dainik Bhaskar said that it is actually the English newspapers that see more of plagiarism and that he has not come across any of his team plagiarizing ever. Even Mr Mitra of The Pioneer agreed with his viewpoint.

 

M. Kesava Menon, editor, Mathrubhumi – the Malayalam language newspaper – also believes in attributing the original author in articles, and sees plagiarism as serious offence. Even though the editors are quite sure the copying a work is an offence, it is actually not unknown that plagiarism sometimes goes unregistered.

 

In a rapidly changing newsroom set-up, influenced vastly by ‘research’, it is important that writers and columnists create original work. And only strong and stringent measures can curb such a practice.

 

Post a Comment 

2 responses to “Demystifying plagiarism, the legal way”

  1. Rp13 says:

    Dear Nandita,

    My father co-wrote a play with 2 other writers some 12 years, which has since been staged on various national and international platforms. It was never, however, published on paper. Now, some people have started staging it without permission from my father, making undesirable changes in the script and not crediting him. Can this be called a valid case of copyright infringement too?

  2. Mike says:

    Apart from copyright, the Copyright Act also recognises the right of an author to be credited for his work via Section 57 of the Copyright Act which, among other things, grants authors the ‘Special Right’ to claim authorship.

    I don’t agree with that..
    visit

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