Plagiarism is nothing to do with copyright
September 20, 2013
I was astonished yesterday to read Understanding and addressing research misconduct, written by Linda Lavelle, Elsevier’s General Counsel, and apparently a specialist in publication ethics:
While uncredited text constitutes copyright infringement (plagiarism) in most cases, it is not copyright infringement to use the ideas of another. The amount of text that constitutes plagiarism versus ‘fair use’ is also uncertain — under the copyright law, this is a multi-prong test.
So here (right in the first paragraph of Lavelle’s article) we see copyright infringement equated with plagiarism. And then, for good measure, the confusion is hammered home by the depiction of fair use (a defence against accusations of copyright violation) depicted as a defence against accusations of plagiarism.
This is flatly wrong. Plagiarism and copyright violation are not the same thing. Not even close.
First, plagiarism is a violation of academic norms but not illegal; copyright violation is illegal, but in truth pretty ubiquitous in academia. (Where did you get that PDF?)
Second, plagiarism is an offence against the author, while copyright violation is an offence against the copyright holder. In traditional academic publishing, they are usually not the same person, due to the ubiquity of copyright transfer agreements (CTAs).
Third, plagiarism applies when ideas are copied, whereas copyright violation occurs only when a specific fixed expression (e.g. sequence of words) is copied.
Fourth, avoiding plagiarism is about properly apportioning intellectual credit, whereas copyright is about maintaining revenue streams.
Let’s consider four cases (with good outcomes in green and bad ones in red):
- I copy big chunks of Jeff Wilson’s (2002) sauropod phylogeny paper (which is copyright the Linnean Society of London) and paste it into my own new paper without attribution. This is both plagiarism against Wilson and copyright violation against the Linnean Society.
- I copy big chunks of Wilson’s paper and paste it into mine, attributing it to him. This is not plagiarism, but copyright violation against the Linnean Society.
- I copy big chunks of Rigg’s (1904) Brachiosaurus monograph (which is out of copyright and in the public domain) into my own new paper without attribution. This is plagiarism against Riggs, but not copyright violation.
- I copy big chunks of Rigg’s paper and paste it into mine with attribution. This is neither plagiarism nor copyright violation.
Plagiarism is about the failure to properly attribute the authorship of copied material (whether copies of ideas or of text or images). Copyright violation is about failure to pay for the use of the material.
Which of the two issues you care more about will depend on whether you’re in a situation where intellectual credit or money is more important — in other words, whether you’re an author or a copyright holder. For this reason, researchers tend to care deeply when someone plagiarises their work but to be perfectly happy for people to violate copyright by distributing copies of their papers. Whereas publishers, who have no authorship contribution to defend, care deeply about copyright violation.
One of the great things about the Creative Commons Attribution Licence (CC By) is that it effectively makes plagiarism illegal. It requires that attribution be maintained as a condition of the licence; so if attribution is absent, the licence does not pertain; which means the plagiariser’s use of the work is not covered by it. And that means it’s copyright violation. It’s a neat bit of legal ju-jitsu.
References
- Riggs, Elmer S. 1904. Structure and relationships of opisthocoelian dinosaurs. Part II, the Brachiosauridae. Field Columbian Museum, Geological Series 2:229-247, plus plates LXXI-LXXV.
- Wilson, Jeffrey A. 2002. Sauropod dinosaur phylogeny: critique and cladistic analysis. Zoological Journal of the Linnean Society 136:217-276.
Sauropod Vertebra Picture of the Week 
September 20, 2013 at 10:58 am
You’re correct, and it’s very sad that the legal counselor of a big publisher doesn’t know what she’s talking about when it comes to academic misconduct. That’s part of the problem.
But I wish to add that plagiarism is not only (nor mainly) “an offence against the author”. It’s an offence against academia. Some authors even feel pleased when they find their writings plagiarized. But that’s not the point. A plagiator deceives academia (in person: his readers) about the true source of the plagiarized ideas. That makes it hard (and sometimes impossible) to understand the genesis and development of academic doctrines – and thus to check their premises and presuppositions.
September 20, 2013 at 11:02 am
You’re quite right: plagiarism damages the whole academic community. I probably should have written “an offence primarily against the author”.
September 20, 2013 at 11:05 am
In my opinion, it’s not primarily but secondary. Academic research is primarily about gaining knowledge. Getting the right people to tenure is the secondary goal. And plagiarism damages both.
September 20, 2013 at 11:12 am
I can’t agree. In the end, what matters to the community is getting the results of research out there. Who they are credited to is much less important to the community than to the individuals. Suppose Newton in fact plagiarised calculus from Leibnitz: that’s very sad for Leibnitz, but we all still get the benefit of that research.
September 20, 2013 at 11:28 am
That’s an interesting argument. You’re right in the perspective that the results of research are true and “hard facts”. But what if we doubt the results of research (imagine “softer” fields of knowledge, humanities, history)? It may be important to know where an argument originated: Did it come from medieval mysticism, from anti-darwinistic creationism, from social-darwinism or even fascism? That’s important for the critical assessment of the context and presuppositions of the academic position in question. If the idea is taken from such contexts and not attributed, the reader may have a hard time to find the argumentative flaws in the non-explicit premises.
September 20, 2013 at 12:25 pm
I’d like to add another aspect of the harm caused by plagiarism, especially in the biomedical field: Findings of an individual study might get more weight than they deserve, for example if both the original study and the plagiarized duplicate find their way into a meta-analysis or a systematic review. This skews the results and creates false evidence and exaggerated statistical confidence, for example in support of a novel medical treatment.
I therefore would add “patients” to the group of people potentially harmed by plagiarism.
That said, I don’t see much point in ranking these different types of harm – we agree plagiarism has adverse effects for a couple of reasons, don’t we?
September 20, 2013 at 12:37 pm
A useful explanatory matrix. One small quibble I’d have, though, is that copyright violation is better understood as failure to get required authorization (as distinct from the failure to give proper attribution, which is the offense of plagiarism). In the case of public domain material, no authorization is required, of course.
In commercial STEM publishing, payment to the rightsholder is the main motivation for requiring authorization. But in the more creative end of things, integrity of the work can also be an important motivation. For instance, Bill Watterson has famously refused to license his Calvin and Hobbes characters for plush toys and similar merchandise, and accurately complains of copyright violation when people sell things like those Calvin-peeing stickers and shirts. Here the issue isn’t payment– he doesn’t want anyone selling them, whether or not he gets paid for it. His main motivation is to control the presentation of his work, and within certain bounds (including fair use exemptions, parody, and so on), copyright gives him the authority to do this.
September 20, 2013 at 12:58 pm
That is an excellent point, John Mark, and Bill Watterson is a fine example of this (rather rare, I suspect) aspect of copyright.
September 20, 2013 at 1:43 pm
I don’t get it. Is the quote a suggestion that they are OK with publishing stolen ideas, as long as it’s not blatant copy-paste plagiarism? It would be a good news for the many ISI bean counting worshippers, but maybe my understanding is not correct, coming from seeing the quote out of context.
September 20, 2013 at 8:13 pm
Reblogged this on BLACKWATER LOCALITY #1.
September 23, 2013 at 2:19 am
See the response to my comment by Mark Seeley, General Counsel at the original article, which I reproduce here in the interest of discussion:
“Dear David, I’m responding on Linda’s behalf as she’s currently on vacation. The point of the paragraph in question was that there are many gray areas, areas of doubt and uncertainty. We did not say that all instances of plagiarism are necessarily also copyright infringement. Clearly in most instances of literal full-text copying of a significant amount of text, without attribution (of “in copyright” works) will be copyright infringement. My colleague then went on to note that copyright does not protect against discussing ideas and facts, meaning that someone can plagiarize the ideas of another without violating the underlying copyright. The two concepts are related, but not identical, and we did not suggest otherwise. Kind regards, Mark”
(http://editorsupdate.elsevier.com/issue-40-september-2013/understanding-and-addressing-research-misconduct/#comment-2966)
September 23, 2013 at 5:24 am
John Mark Ockerbloom pretty close with “… copyright violation is better understood as failure to get required authorization (as distinct from the failure to give proper attribution, which is the offense of plagiarism) …” in locating the difference in authorization and attribution, but I’d suggest that the sin of plagiarism is misattribution by the plagiarist, the claim that the copied text is his own work. A failure to properly attribute a chunk of text to its source in circumstances where it’s clear the author is not claiming it as his own work would not be plagiarism.
I’d add that the right to attribution as well as the right to integrity of the work are elements of the “moral rights” of authors recognized in Canadian law and found also in Article 6bis of the Berne Convention on for the Protection of Literary and Artistic Works. In Canada, at least, there are provisions for authors to waive their moral rights (which cannot be transferred) and this is routinely done in employment contracts and contracts related to copyright works.
The right offended by plagiarism per se is the right not to have an author pass off as his own work that of another and is really a general public right, along the same lines as the right not to be defrauded. A copying of the work of another by an author is plagiarism if it is passed off as his own work whether or not the original work is covered by copyright, regardless whether the original author’s moral rights still exist and even regardless of whether the plagiarist had the original author’s permission to claim the work as his own. That latter is the case where someone claims as his own the work of his ghostwriter.
None of that’s legal advice, but I do a bit of contract related IP work in the job and it shouldn’t be too far off.
September 23, 2013 at 6:49 am
Thanks, David, both for leaving a comment on the original post and for passing on Mark Seeley’s response. It’s a bit of an embarrassment, isn’t it? “The two concepts are related, but not identical, and we did not suggest otherwise” is … let’s charitably say that it’s not a particularly accurate description of the statement “uncredited text constitutes copyright infringement (plagiarism) in most cases”.
Yes, there are grey areas of doubt and uncertainty about exact how much reproduction of copyrighted material constitutes violation. But there are no grey areas about the distinction between copyright violation and and plagiarism, and there never have been outside of profoundly unhelpful articles like Lavelle’s. I’m amazed they didn’t just fix the article.
Thanks, Mike, for a lawyer’s perspective. I take your point that failure to attribute work (either explicitly or implicitly), while a breach of academic norms, is not exactly plagiarism. But it’s not easy to think of a situation where that would happen. I might conceivable reproduce a bunch of Riggs’s (1904) work but wrongly attribute it to Hatcher — but why would I want to do that? I suggest that by far the most common case would be for me to reproduce Riggs’s work and not attribute it at all: which in a paper authored by me is implicitly attributing it to myself.
September 27, 2013 at 3:33 pm
Thoughts on self-plagiarism of this type?
http://retractionwatch.wordpress.com/2013/09/17/your-bad-journal-yanks-paper-for-plagiarism-and-duplication-and-points-fingers/
September 27, 2013 at 5:05 pm
To be honest, I don’t have a lot of patience with the idea of self-plagiarism, especially as it applies to introductions. Frankly if I am writing two different papers that take off from the same base to fly in different directions, I don’t see how it’s to anyone’s advantage for me to two different but functionally identical introductions.
(The form of “self-plagiarism” that is duplicate publication of the same work is quite a different matter, of course.)
But in the case you linked, that’s moot, since it seems the text in questions was originally lifted from someone else’s paper. And, when done without attribution, that clearly is plagiarism. (It may also be copyright violation, but that’s a different matter.)
October 4, 2013 at 6:35 pm
From the article: “Plagiarism is about the failure to properly attribute the authorship of copied material.”
Incorrect. Plagiarism is copying someone else’s work and causing others to think it’s your own work. Yes, I admit that most cases of plagiarism occur through a lack of attribution, but such attribution isn’t always possible (orphaned untitled works or a vaguely remembered folktale, for example), in which case simply stating that you read the quote or whatever elsewhere is enough to avoid a charge of plagiarism.
October 4, 2013 at 6:50 pm
“[Bill Watterson] inaccurately complains of copyright violation when people sell things like those Calvin-peeing stickers and shirts.”
FTFY, John Mark Ockerbloom. It’s already been established in Federal court that Fair Use isn’t infringement, and bastardising works to attack their creator’s viewpoint is parody, one of the four Fair Use factors. The creators of Calvin-peeing stickers are also more likely to win any case Bill Watterson brings because of their works’ highly transformative nature and the fact they appeal to a completely different market. Why do you think he’s all talk and no action on the issue?
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