June 24, 2017

The Difference between Copyright Infringement and Plagiarism—and Why It Matters | Peer to Peer Review

Anderson-July-2014-170x170Reading a recent article in The Atlantic and the subsequent comments, I was struck again by how much confusion there is among the public about the difference between plagiarism and copyright infringement.

The difference matters—not least because plagiarism, while dishonest and reprehensible, is not illegal. Copyright infringement is. Copyright infringement can, in fact, constitute criminal behavior, as opposed to a civil infraction, and sometimes even rises to the level of a felony. (Title 18, Part 1, Chapter 113 of the U.S. Code section §2319 discusses copyright infringement as an example of “stolen property” and provides for penalties including up to ten years of imprisonment for more egregious examples.)

The difference between plagiarism and copyright infringement also matters because the two actions can have very different impacts on those who have legitimate rights in the work in question. Except in unusual circumstances, claiming someone else’s work as your own (plagiarism) is relatively unlikely to cause financial or even significant reputational harm to the actual author. For example, stealing a few sentences or paragraphs from someone else’s book and inserting them into your own work is probably not going to make it less likely that anyone would buy the other person’s book. This is one of the reasons that the law doesn’t generally say much about plagiarism.

However, copyright violations can have very significant financial implications for the copyright holder: making someone else’s work freely available to the world without their permission can, for obvious reasons, seriously undermine the market for paid access to it. Other kinds of copyright violation can have negative financial impacts on authors and creators as well: consider the potential impact to a poet’s reputation and future sales of an unauthorized and incompetent translation, or how much income a composer loses if his music is performed in front of 1,000 people without permission and royalty payment.

Telling the Difference

If you were to take Alice’s Adventures in Wonderland, change the title and the characters’ names, and pass it off as your original work, that would be plagiarism. However, there would be no copyright infringement, because Alice’s Adventures in Wonderland is in the public domain and therefore no longer subject to copyright.

On the other hand, if you were to take 50 Shades of Grey—a work currently in copyright—change the title and the characters’ names, and pass it off as your original work, that would constitute both plagiarism and copyright infringement. Stealing the author’s work in this way and selling an unauthorized derivative of it would not only be unethical; it would also be illegal.

Under U.S. law, it might be an example of stealing that rises to the level of a felony punishable by imprisonment, depending on its demonstrable financial impact on the legitimate rights holder. For a book like 50 Shades of Grey—a popular work by a living author who is making lots of money from her copyright—the likelihood of causing significant financial damage by infringing on her copyright in this way might be greater than it would be if you were stealing the work of a less successful author, but it would be against the law either way.

It’s Complicated

It’s actually possible to plagiarize an in-copyright work without committing copyright infringement. Suppose you write a novel of your own, with characters and a plot of your own invention. You take a handful of passages from 50 Shades of Grey, alter them slightly, and incorporate them into your original work. This would constitute plagiarism, but depending on how much of the original author’s work you stole and how essential the stolen parts are to the original work, it might not constitute actionable copyright infringement.

How severe a case of plagiarism it represents would depend on how substantially you used the original author’s work, and how severe a case of copyright infringement it represents would depend on factors that include how much of the original work you stole and the degree to which it affects the author’s ability to benefit from her copyright. The very important legal concept of “fair use” comes into play here; a useful overview of how fair use works is provided by Rich Stim at Stanford.

The illogic of “self-plagiarism”

Sometimes, especially in the world of scholarly publishing, we talk about “self-plagiarism”—recycling one’s previous work and passing it off as new. We sometimes see this in the work of very prolific authors, who may lift content from an earlier book or article and drop it into a new work on a related topic. In this context, the term “plagiarism” is a misnomer. It’s logically impossible to plagiarize oneself. But that doesn’t mean that the dishonest presentation of old work as new work is okay; it just means that we need a more accurate term for it. And, of course, there isn’t necessarily anything wrong with recycling one’s old work, only with trying to trick readers into believing that it’s new.

Help from the library

As librarians, what can we do to help our patrons understand and avoid plagiarism and copyright infringement, and understand both the connections and the very important differences between them? I would recommend at least three basic strategies:

  • Never deliver a copyright instruction session without talking about plagiarism, and never deliver a plagiarism instruction session without taking about copyright. Help the class understand both how they are related and how they differ.
  • Incorporate brief discussions of plagiarism into libguides and other library instructional materials that deal with copyright—and vice versa.
  • Students, in particular, need to understand how fair use works and what its parameters are—and they need to understand that making fair use of others’ copyrighted work in their papers and projects doesn’t absolve them of the responsibility to give the original authors appropriate attribution. We can remind them of this both in classroom settings and one-on-one research help sessions.

Confusion between plagiarism and copyright infringement is probably going to be a permanent feature of the landscape, and as more and more publishing moves online (where both plagiarism and copyright infringement are much easier to accomplish than they have ever been before), it will become increasingly important for all of us to understand the difference between them. We who work in libraries are nicely positioned to help resolve that confusion.

Rick Anderson About Rick Anderson

Rick Anderson (rick.anderson@utah.edu) is Associate Dean for Collections & Scholarly Communication at the University of Utah’s J. Willard Marriott Library. He serves on numerous editorial and advisory boards and is a regular contributor to the Scholarly Kitchen blog. He currently serves as president of the Society for Scholarly Publishing, and a collection of his essays titled Libraries, Leadership, and Scholarly Communication was published this year by ALA Editions.

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Comments

  1. It’s interesting that you take 50 Shades of Grey as an example, because there is a fair case to be made that — due to its origins as Twilight fanfiction — that that particular title manages to infringe Stephanie Meyer’s copyright without actually plagiarising.

    The US courts have yet to rule on the legal status of commercially published fanfiction, due mostly to the understandable reluctance of authors and other creators to risk the ire of the passionate fanfic community by filing suit. Most discussions of the topic refer to the various cases legitimizing parody as “fair use”, which isn’t *quite* applicable.

  2. Miguel Roig says:

    It is conceivable, though I am not aware of any such cases, that instances of self-plagiarism can also represent copyright infringement. Consider the following scenario: Suppose you write a book with publisher X and, as is often the case, publisher X now holds the copyright to your work. Then, you write a second book and, surreptitiously or not, you include significant portions of the earlier book in the second book. But, the second book is printed by a different publisher, Y, which owns its copyright. The reuse of material from the first book to the second book could conceivably represent a case of copyright infringement.

  3. A great piece. Thank you. I don’t think you gave an example of the third option: Copyright infringement without plagiarism. I explain to clients that plagiarism is dishonesty/unethical conduct surrounding the origin of a work, whether copyrighted or not. If you borrow from or quote a work and give full credit, you’re not plagiarizing. But you could be infringing copyright, despite the fair use defense that people like to assume will protect them. The owner of the copyright will likely not care that you gave them credit–you are still using their work without their consent or license. (I also tell people to be very cautious in relying on a fair use defense because only a judge can tell you if it applies, and your goal is to avoid ending up in front of a judge.)

    • Rick Anderson says:

      Thanks, Nicholas! You’re right — I didn’t provide any examples of copyright infringement without plagiarism. I probably should have.

      As for fair use: personally, the advice that I give people about fair use is a bit different. I don’t tell them to be cautious, but rather to do the small amount of homework necessary to understand the basic principles of fair use (they’re not that complicated, really) and then to exercise their rights under the law with confidence. My position is that, as librarians and users of information, we should obey copyright law scrupulously and exercise our fair use rights assertively. Those two positions are mutually compatible; we don’t have to choose between them. And the good news is that in the great (great) majority of cases, we don’t have to worry about having to justify our choice in front of a judge. Most of our fair-use choices are simply a matter of trying to operate in good faith in the absence of any likely challenge.

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