India: It’s Sloppy, It’s Plagiarism!

Last Updated: 20 June 2006
Article by Manisha Singh Nair

As the controversy set around the Da Vinci Code began to fade away, it was the Harvard sophomore, Ms. Viswanathan who got caught in the mire. Whither goest these plagiarism issues? Is it only that novelists and fiction writers who become the center of the discussion? What is that thin line that differentiates the original thought of one person and the influence it has on someone who picks the thread and weaves it into his/her fantasy? Dan Brown was discussed on a much broader aspect but then Kaavya and her books going off the shelf and the cancellation of the deal, all this is being debated thereby raising vehement criticisms on plagiarism. Plagiarism is considered as an offence more on the academic lines and it involves the passing off of another’s work as one’s own. This is more common wherein authors tend to write in similar lines to an already existing book or novel or when students copy relevant academic materials and present as their original write-ups. Plagiarism by students could be unintentional or inadvertent and due to lack of experience in using sources. In cases of intentional student plagiarism the issue is better taken care of by developing frameworks that would help put a check. The issue of stealing someone’s intellectual property acquires gravity when it amounts to copyright infringement.

Law in its part has been clear that plagiarism as such is not an infringement of copyright. As the observation goes, ‘it is not an infringement to copy the form of words, ideas, themes or incidents included in a work. e.g. in a short story, novel or film. It may be plagiarism, but plagiarism is not infringement of copyright’ (Copyright and Industrial Designs, P. Narayanan, 3rd ed., Eastern Law House, p.20). Differentiating copyright infringement, Section 13 (1)(a) of the Copyright Act reveals that copyright exists only in original literary work and a catena of decisions prove that it is not necessary that the work should be the expression of original thought. Moreover, rather than the originality of ideas it is the expression of the thought that is pertinent. The essence of originality holds that the work should have originated from the author and it should not have been copied from another’s. In Macmillan & Co. v. Cooper (AIR 1924 PC 75), it was stated:

"the question is not whether the materials which are used are entirely new and have never been used before, or even that they have never been used before for the same purpose. The true question is whether the same plan, arrangement and combination of materials have been used before for the same purpose or for any other purpose."

The gist is that for a claim of copyright to subsist no originality of thought is required as it is not the ideas that are protected but the expression or the skill and labor needed to give a particular form to any given idea. The test of infringement is carried on the following points like the reproduction of the work in a material form, performance in public, adaptations and so on. Furthermore, a substantial taking is characterized by unaltered copying, the nature of effort, the extend of alteration, if any etc. An inference of copying can be drawn when there is sufficient resemblance. But it should also be noted that a similarity or even identity between two works due to coincidence does not constitute an infringement of the first by the second. Furthermore, it is also to be noted that reissuing copies of a work, which has already been lawfully made, or reproducing the idea conveyed by or embodied in a copyright work without copying the form in which the idea is expressed. Copyright laws recognize much wider limitations to the exclusive rights granted to the right holder than in any other category of IPR. A substantial copying amounting to infringement of copyrights unlike plagiarism also affects the rewards and economic benefits due to the author. As truly as the maxim stands, ‘what is worth copying is worth protecting’.

Plagiarism is not new in an ever-expanding publishing industry. But then unlike infringement of copyright, which is a legal issue, plagiarism rests more on ethical and moral grounds. It is more a stigma that gets attached to one charged with plagiarism than the legal consequences that would haunt an infringer. Ending on a positive note, books ought to inspire to so as to contribute to the world of literature. Ideas may remain the same or a new thought stems up from what was already in existence, for mostly its discovery of something expressed in a unique manner.

© Lex Orbis 2006

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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