Plagiarism Outside the Province of Copyright Infringement

Posted on:August 27, 2010

Copyright infringement, plagiarism, and fair use are distinct concepts. Sadly, anyone can sue for copyright infringement, even if not justified!
 
Copyright infringement and plagiarism are not equivalent terms. Plagiarism is unattributed copying in largely in academic contexts. Copyright infringement is a legal term for theft of intellectual property. Both are wrong. A third type of use/copying fits neither category neatly, e.g., homage, satire, in-the-style-of assignments, or fan elaboration. These are some ideas on all three issues.
 
Copyright infringement is a serious crime, punishable by fines, forced repayment of ill-gotten profits, or jail time. However, copyright infringement is not exactly the same as plagiarism. They are two different issues, and often apply in different situations, although both can be present at once.
 
Plagiarism is a term used most often in academic and scholarly circumstances. It is usually considered to be the use of words, code, or other creative or intellectual product without adequate attribution. Different fields and academic disciplines, however, impose their own standards.
 
How’s copyright infringement defined?
 
Copyright infringement is a breach of US law. It covers display of a work, including “derivative work” which the US Copyright Office defines as:

  • Based upon preexisting work(s)
  • Translation
  • Musical arrangement
  • Dramatization
  • Fictionalization
  • Motion picture version
  • Sound recording
  • Art reproduction
  • Abridgment
  • Condensation
  • Recasting
  • Transformation
  • Adaptation
  • Editorial revisions
  • Annotations
  • Elaborations
  • Other modifications

This is stunningly broad, but protects the author: (http://www. copyright. gov/title17/92chap1.html#derivative).

There are exceptions to this. “Fair use” is a legal doctrine defined in terms of the following tenets:

  1. Commercial use of copied material
  2. The character of copied work (including unpublished work)
  3. The amount of work copied
  4. Any effect of copying on market for copied work

(http://www. copyright. gov/fls/fl102. html )
(See this webpage for detailed discussion of copyright infringement: http://www. lib.uconn. edu/copyright/fairUse_understanding. html).
 
When a copyright is issued, the holder has a responsibility to defend it, or the right effectively lapses. Google chose not to copyright, instead allowing the word to enter the English language and advertise them every time it is used.
 
Clearly, most academic situations avoid copyright infringement, since plagiarizing students seldom profit. In fact, they pay dearly for the privilege of writing their term papers (or copying them!).
 
Exceptions occur! A graduate student recently sued a professor for copyright infringement of genetic research. (http://www. genomeweb. com/biotechtransferweek/stanford-grad-adds-plagiarism-gene-modification-ip-theft-suit-against-school-pro?page=show ). This is slippery stuff. Read these links; inform yourself regarding potential copyright infringement.
 
Copyright infringement potential eventually expires:
 
A proxy measure is age. Pieces written before copyright laws generally invoke no question of copyright infringement. This is the venal reason that animators use classical music. No heirs will sue for copyright infringement! Copying such older material is, however, nonetheless, plagiarism. Not attributing properly is poor scholarship.
 
Copying at the instructor’s direction is not likely to represent copyright infringement:
 
Are students assigned to model themselves on an authors’ style or format? Some professors ask request a pastiche, or alternative ending of a story, play, or poem. Clearly, no matter the pitch perfectness of a student rendering of, e.g., Millay’s poetic style, this constitutes neither copyright infringement nor plagiarism. However, discretion suggests appending an explanatory introduction or epilogue, in case of later display outside!
 
Copying in homage to another is usually not copyright infringement
 
Homage to an admired author leads into risky territory. However given a polite request, attribution, and thanks, copyright infringement action is less likely. Many fans now write extensions of admired, beloved stories. Commercial examples include a recent update of Chaucer (http://www. examiner. com/x-24363-Las-Vegas-Writing-Examiner~y2010m6d29-Spotlight-Authorreporter-Frank-Mundos-new-book-pays-homage-to-Chaucer)
 
Most make no money, however, so they may constitute fair use. For example, a Harry Potter web-based fanzine (http://www. faelivrin. net/hpzine/ ) explicitly disavows profit-making.
 
Are copyright infringement and money-making linked?
 
In book publishing, unless attribution boosts sales, it is somewhat meaningless. Mostly, it provides the author a warm, but otherwise useless feeling, much akin to hot soup in one’s lap. However, in the online world, attribution may drive searches towards a source web document. This increased traffic may increase revenue to the copied author if their webpage features advertisements.

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