The Role of Copyright in Fighting Plagiarism: Part 1
When I started Plagiarism Today, my intention was to make this a blog solely about plagiarism online. However, I quickly realized that the title was going to be something of a misnomer as separating plagiarism and copyright was going to be all but impossible, especially if you’re going to teach people how to track down and stop plagiarism online.
Over the years I’ve spent a lot of time studying the intricate, complicated, confusing and even contradictory relationship between copyright and plagiarism.
On the surface, the two don’t seem to have a lot to do with one another. Copyright is an area of civil and criminal law that prevents a series of uses of a qualifying creative work. Plagiarism is a primarily ethical issue that centers around the dishonesty of claiming another’s work as your own.
However, there is a great deal of overlap between the two, though the overlap is far from total. Though many acts of plagiarism are copyright infringements, not all are and the reverse is true as well. You can infringe without plagiarizing and plagiarize without infringing.
This makes the role of copyright in dealing with plagiarism a strange one and a recent article by Nina Paley drew attention to some of the nuances. However, unlike Paley, who concluded that copyright makes it easier to plagiarize and isn’t needed to stop plagiarism, I’ve found the relationship between the two to be much more complicated and that, often times, copyright is very necessary to shut down plagiarism.
But why this is the case requires a deeper look and requires me to look back over six years and thousands of plagiarists I’ve dealt with.
Does Copyright Make Plagiarism Easier?
Paley makes the argument in her post that copyright actually encourages plagiarism because it makes the penalties roughly the same for attributed infringement as it does for plagiarized infringement.
Legally, this argument ignores moral rights, which exist in most countries and provide a separate legal right for the author to be attributed. It also ignores copyright management information (CMI) a part of the DMCA that adds a penalty for the removal of certain information from a copyrighted work, including attribution (though this may not apply to all plagiarisms) and it also ignores that statutory damages are intentionally flexible so judges and juries can weigh factors like plagiarism in determining how much is owed.
It also ignores that there are other, non-copyright related laws that may be violated in cases of plagiarism including defamation and unfair business practices. In short, there many ways that a plagiarized infringement can and likely will be treated more severely than an attributed one.
More importantly to me though, this argument goes against my experience. I’ve interviewed dozens of admitted plagiarists over the years and none have said that they weighed the legal consequences of their actions at all before doing it. Most were completely unaware of how copyright might apply and those who were aware had false reasons for thinking it wasn’t an infringement.
In short, no one has ever said do me that they “might as well plagiarize”. It’s just not something that plagiarists do as most simply don’t expect to get caught, let alone weigh the consequences of their action, legal or otherwise.
While this means that the law doesn’t encourage plagiarism, it also means it isn’t much of a deterrent. However, though it might not prevent plagiarism, it is a powerful tool for stopping it.
Using Copyright to Stop Plagiarism
According to Paley, the reason copyright isn’t necessary for dealing with plagiarism is because, simply put, plagiarists will be caught and suffer without copyright enforcement. Paley chose her example of Beethoven carefully for two reasons:
- Beethoven’s work is in the public domain, meaning a plagiarism is not an infringement.
- Anyone who attempted to plagiarize Beethoven would, almost certainly, be called a liar because his work is so well known.
Paley says that an transparent system means plagiarists will be caught and stopped without the headache of copyright. While that would be nice, that is not how the system works at, least not with any consistency.
The reason is that for every Beethoven, who will have their worked recognized almost instantly, there are thousands, if not millions, of similar creators toiling in relative anonymity and can be plagiarized with no one being aware.
I was, and still am, one of those creators.
Back when I started dealing with plagiarism on a broad scale, I attempted to resolve plagiarism cases without the use or even mention of copyright. Talking with plagiarists directly, calling them out publicly, etc. The results were, at best, mixed. Though many were easily stopped that way, others weren’t. In some drastic cases, the plagiarist wouldn’t stop and others around him refused to believe me, even when presented with proof.
In short, without the Sword of Damocles that is copyright hanging over them, many of the plagiarists I’ve dealt with over the years would still be plagiarizing and building reputations and careers off of my work.
The problem is that the “transparent system” that is the Internet fails in at least two different ways.
First, the system is highly imperfect. It can be difficult, if not impossible, to tell when a work was posted online and the few pieces of information that are available can easily be forged. Short of third-party non-repudiation services, such as Safe Creative, Myows, Numly, etc. there is no easy way to verify when a work went online.
Second, it requires that others actually use the system to check. To understand that problem, think of all the articles you’ve read online over the past year and then ask yourself how many you checked for plagiarism. Most people, myself included, only check for plagiarism if we have an outside reason to suspect something is wrong and that is very, very rare.
In short, there are many thousands of plagiarists operating undetected online now and, without action by the creators they pull from, aren’t likely to be caught. Furthermore, without copyright to backup those actions, many aren’t likely to stop or be forced to.
While it would be nice to live in a world where plagiarists are reliably caught and deal with without the use of copyright law, we simply don’t live in that world. After dealing with 700 of my own plagiarists and well over 1,000 when you count my work for others, I can testify that many, if not most, plagiarists would not be stopped without copyright law.
For every idiot plagiarist who copies Beethoven, there are thousands pulling from lesser-known targets and doing far better to get away with it. Though I hardly think of most plagiarists as masterminds, few are as stupid as to claim the 5th Symphony as their work.
Whether you agree or disagree with copyright, you almost certainly disapprove of plagiarism and stopping plagiarism is one of the least-controversial applications of the law. But while it would be nice if it weren’t a necessary application, the practical realities of the Web don’t enable that, at least not for most content creators.
While the relationship between copyright and plagiarism is not a perfect one and there are certainly many flaws in it, it’s the best tool available for creators who are plagiarized, at least in many cases. Without copyright, some other regime would be necessary to stop plagiarism and protect artists from it.
That being said, Paley also made several points on the issue of attribution and the right of the author to be attributed. Those are issues I will discuss in part 2 of this past later this week.