“If a plagiarist is someone who copies the written work of another without giving attribution to the original author, then Peter Cannon is certainly a plagiarist.” 1
The dawn of Intellectual Property (herein after IP) can be traced back to the 6th century BCE in Ancient Greece. In the article entitled, “History And Evolution Of Intellectual Property”, Abdulrahman Abou Naja mentions, “a yearlong exclusivity for bakers to make their culinary invention” He further adds, “In a manner of speaking, the rise of Intellectual Property originated from the rising of bread.”2
As the human civilisation has grown, so has its IP. Plagiarism has probably become the most rampant of all the intellectual property violations whereby school students to college students to professionals all across the globe, knowingly or unknowingly, present plagiarised work in their hunger to grow and move up the food chain. While on the one hand it represents a moral and ethical wrong, the other may deprive a genuine author the fruits of his/her labour.
The textbook definition of plagiarism is presenting someone else’s work or ideas as your own, with or without their consent, by incorporating it into your work without full acknowledgement. All published and unpublished material, whether in manuscript, printed or electronic form, is covered under this definition. Plagiarism may be intentional or reckless, or unintentional 3. Plagiarism may be Direct, self, Mosaic plagiarism or Accidental plagiarism.
Under Section 57 of Copyright Act, 1957 (herein after the Act), an author has a special right to claim for acknowledgment, authorship or damages, if his work is used somewhere else without his consent. Under Section 63 of the Act, the court can award the same level of punishment as of for copyright infringement for violation of Section 57, which may amount to imprisonment for 6 months but not more than 3 years and compensation in the form of fine of fifty thousand but not more than two lakh rupees and Under 63A the enhanced penalties for second and subsequent convictions are provided, which shall be an imprisonment for a minimum of 1 year and a maximum of 3 years and fine of minimum 1 lakh to maximum of 2 lakh rupees.4
In many ways, plagiarism is the new age IP monster which manages to slip under the fine print making it almost invisible to the naked eye. In India, there is no particular statute which deals specifically with plagiarism. The provisions of the Act are only used when a plagiarist accusation is to be litigated. Plagiarism can be a violation of law if copyrighted expression is taken. The Legal Information Institute at Cornell Law School quotes Nolo’s Plain Law Dictionary while stating that, “Often, however, plagiarism does not violate any law but marks the plagiarist as an unethical person in the political, academic, or scientific community where the plagiarism occurs.”5
In the absence of specific statutes, creative techniques proposed to train the young minds to recognise and prevent inadvertent violation of IP are proposed. Much of the research on plagiarism and other breaches of academic integrity has focused on the role of teaching and learning, particularly at the undergraduate level, with targeted induction, support, and training advocated for all students, and in particular for those from non-traditional backgrounds. Strategies to deter plagiarism include advice regarding assessment development, curriculum design, and academic skills education6. In the academic circles, the guidelines, rules and regulations for plagiarism vary. The institutions themselves come up with the code of conduct for plagiarised work.
In the field of law, there is a plethora of paperwork right from pleadings to interim applications to convenience sets to brief notes for final arguments. The issue of plagiarism in litigation has been adequately discussed by Andrew M. Carter in his article entitled “The Case for Plagiarism” while discussing the case of one Peter Cannon, an attorney, who while researching a brief on a bankruptcy matter, discovered an article on a New York law firm’s website. The article was composed by two of the firm’s bankruptcy lawyers and it was apparently quite on point. Cannon’s opening brief was nineteen pages long out of which seventeen pages were cut, copy and paste from the online article. He did not, however, see fit to cite the article from which he extensively copied.7
The question which now arises is whether plagiarised drafts cause serious legal injury to the attorneys who drafted it first or do they suggest that ‘borrowing’ from each other helps the advancement of quick and restorative justice and makes the community grow as an entity ?
Carter states that, “The academic norm prevails because originality has a unique value in the academic setting, and these values are well served by a professional rule against plagiarism. He mentions, “If an attorney likes the wording of a warranty clause in a contract drafted by an unaffiliated attorney, it is no sin to copy that clause verbatim into a new document without giving the original drafter attribution. In fact, most scholars argue that you should plagiarize other lawyers’ work in transactional practice: first, because uniformity in contract language creates interpretive efficiencies; and second, because plagiarizing another attorney’s work saves time and money.”8
He further adds, “This is all a long way of saying that plagiarism is not a malum se offense; courts and professional tribunals cannot sanction plagiarism in a brief relying on presumed morality. Rather, a rule proscribing plagiarism must be premised on specific and identifiable institutional needs. And, in any event, the copyright interests offended by plagiarism in a brief are barely perceptible; they fall far short of offering a counter-weight to the democratic access-to-justice values that would be served by full abolition of the plagiarism rule.”9
Reliance can also be placed on cultures custom and usage across the globe. In some, like Confucianism, it is encouraged to copy and replicate what others brew. In the olden age, poets were essentially engaged in reciting works written by others, a the widely accepted practise. The growth of plagiarism as a western concept can be directly attributed to the growth of an individualistic society coupled with capitalism and globalisation.
Thus, in conclusion it can be said that although plagiarism is one of the most rampant of all IP violations and in the absence of a specific statue, its punishment may be viewed from lens that are twofold. The nature of the plagiarised work may be assessed (case-to-case basis) on whether it falls under a moral wrong or causes serious injury to the author. Work that is intended to promote principles of justice and keep the wheels of justice turning may be viewed as outside the ambit of even a moral wrong.
1Andrew M. Carter, The Case for Plagiarism, 9 U.C. Irvine L. Rev. 531 (2019).
Available at: https://scholarship.law.uci.edu/ucilr/vol9/iss3/3
2History And Evolution Of Intellectual Property by Abdulrahman Abou Naja18 August 2020
Available at : https://www.mondaq.com/trademark/977124/history-and-evolution-of-intellectual-property
3https://www.ox.ac.uk/students/academic/guidance/skills/plagiarism
4What is the importance of plagiarism? By Himanshu Parmar January 9, 2020
Available at : https://lawtimesjournal.in/what-is-the-importance-of-plagiarism/
5Legal Information Institute of Cornell Law School Available at
https://www.law.cornell.edu/wex/plagiarism
6Challenges in Addressing Plagiarism in Education by Bretag, Tracey. (2013).. PLoS medicine. 10. e1001574. 10.1371/journal.pmed.1001574
7Supra See footnote 1
8Supra See footnote 1
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Written By: Bhuvan Gugnani Advocate & Jahnvi Sharma Advocate For Affinity Legal (Law firm) |
