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Copyright Infringement vs. Plagiarism

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I’m sometimes asked to explain the differences between copyright infringement and plagiarism. The two related terms are sometimes used interchangeably by non-lawyers but they are separate and distinct offenses. Let’s start with some basic definitions.

Copyright Infringement

Copyright Infringement is a very specific offense–it involves copying the protected work of another author. Under the Copyright Act, ownership in a copyrighted work vests in the author automatically once that work is fixed in a tangible medium of expression. For example, when I write this blog post, the copyright for the post vests in me from the moment the words are fixed upon the page (or in this case the digital file containing my text). From the moment I type these words, they become copyrighted and I do not have to register anything with the U.S. Copyright Office to gain protection. In the art world, a painter gains instant copyright protection from the moment the paint hits the canvas. And similarly, a recording artist (or his/her record company) obtains instant copyright protection in the sound recording the instant the song is recorded.

Infringement of a copyright is exactly what it sounds like: it involves someone other than the copyright owner copying a copyright work without authorization. The amount of copying can range from just a snippet of a sound recording (i.e. a musical sample) to copying verbatim textual material of a written work, to making a derivative work of art that incorporates a prior work (i.e. collage). Copyright infringement is a civil tort provided in the U.S. Copyright Act and can be criminal in some instances of piracy for financial gain.

In order for there to be copyright infringement, however, the underlying work must be subject to copyright protection. There are many things that cannot be copyrighted. For instance, an idea for a movie cannot be copyrighted. A single word cannot be copyrighted even if that word is unique such is the case with product or band names. Further, functional objects cannot be copyrighted–e.g. a fork cannot be copyright as a sculptural work though the non-functional elements may be copyrightable. For many dual purpose objects, the gray area requires expert legal analysis. It is important to know whether copyright protection extends to a work before one can determine whether copying of the prior work would be considered copyright infringement.

Plagiarism

Plagiarism is a broader species of copying and a term that encompasses copyright infringement. It is a truism to say that all instances of copyright infringement are instances of plagiarism but it is not necessarily true that all instances of plagiarism constitute copyright infringement. This is because plagiarism includes such things as self-plagiarism (copying oneself), copying of another’s ideas (remember, ideas cannot be copyrighted), and paraphrasing other’s work without attribution. Though paraphrasing can sometimes be copyright infringement, that is not always the case. And similarly, turning in a paper for publication to a journal that one drafted for a college class may be considered self-plagiarism but it is usually not copyright infringement because you own the copyright in the work. Failing to cite your own prior work is also a common form of self-plagiarism.

Because plagiarism is a broad term, I dislike using it when discussing specific instances conduct. It also carries with it a pejorative connotation that presumes wrongdoing. Sometimes there are legitimate reasons why a person would copy another person’s ideas or text. In some industries it is accepted practice to piggyback off of prior works. To the outside world reusing of ideas and words may appear to be plagiarism when to the specific industry that is a necessary part of advancing forward. Although almost all academic circles agree that propr attribution to prior works should be made, this practice borders on the absurd when discussing background material that is widely known. If for instance you are asked to write a research paper about the middle ages for a college history class and say something general regarding the time period, do you have to look and see who the first historian was to note that concept? It might already be accepted knowledge that does not require attribution. Yet, if you turn such a paper in for a grade and the professor runs it through a plagiarism detection software program, it may return other uncited articles that have used similar language. Are you now a plagiarist for failing to cite these sources or are you simply engaging in accepted academic conventions?

Copyright Infringement vs. Plagiarism

Thus, we can summarize the differences between copyright infringement and plagiarism as follows: Copyright infringement is the unauthorized copying of the copyrighted work of another. Copyright infringement is specific to copyrightable works and cannot extend to non-copyrightable things like ideas or functional objects. Copyright infringement is usually litigated in court and can be either a civil tort or crime depending on its severity. Plagiarism on the other hand is the broad term that includes copyright infringement but also includes things that would not be considered copyright infringement such as copying of other’s ideas and paraphrasing without attribution. Plagiarism is not an independent tort nor is it a crime (unless it is also infringement). Plagiarism is usually a term used in academia and research circles and by non-lawyers (incorrectly) who are referring to copyright infringement.

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Hamid Jabbar

Hamid Jabbar

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