Everyone hates a plagiarist. We love to drag people who copy, rather than creating something “new,” because we are obsessed by the cult of authorship. We want to believe in “originality,” because if authors can be special, we can too. And we need to believe in “creativity,” because it allows us to pretend there is something new under the sun. If plagiarism didn’t exist, we’d have to invent it.
The plagiarist is the homo sacer – the “sacred man” – of literature. By banishing plagiarists, we ritually ensure the purity of the literary enterprise. If plagiarism merely lacks the novelty that constitutes literature, then everything else is literature, no matter how banal. Or rather, by defining certain kinds of copying as plagiarism, we can pretend that everything else is novel or original (even if as a deeming fiction), no matter how familiar and pedestrian.
We need to believe in novelty, because we love property, and don’t know how to justify ownership of expressions, unless we can pretend that they are new. In our hearts, we know that everything we think and say is based on what we’ve read and heard, and typically is little more than a trivial variation on convention. But plagiarism norms mean never having to say you’re sorry, so long as you play by the rules, no matter how absurd.
Even better, plagiarism norms mean you can effectively own ideas, copyright be damned. After all, if you’re going to insist on ownership, why settle for half-measures? Owning ideas is valuable, especially in the so-called “academic gift economy,” where nothing else really matters. Ask any capitalist and they’ll tell you it’s a shame to let people consume valuable goods without paying for them. And public goods like expressions and ideas are no exception. After all, if we’re going to pretend someone conjured them up, why shouldn’t we make them the owner as well?
It’s uncomfortable when expressions and ideas don’t have owners. We want to attribute them to someone, if only to avoid taking responsibility for them ourselves. And authors want to own whatever it is that distinguishes their work from others. Maybe that’s all there is to it? Creativity is a fiction, in service of capital. And plagiarism is the transgression that enables us to believe.
Anyway, it’s one thing to impose ridiculous plagiarism norms on authors who choose to join a literary community and abide by its rules. But it’s another thing entirely to impose them on students, who simply want to learn. And yet, not only do we impose rigid plagiarism norms on students, we punish their violations far more harshly than those of professors and professionals. Schools even prohibit students from copying ideas without attribution, and fail or expel them if caught. It makes you wonder. If anyone should be copying, it’s students, who are still learning what and how they think.
Every university has adopted a plagiarism policy, most of which were (ironically) copied from another university. Amusingly, they all prohibit plagiarism, without meaningfully explaining what qualifies. It’s the sine qua non of a “I know it when I see it” standard, and plagiarism is very much in the eye of the beholder. Different professors have different expectations, and students are left guessing as to what kinds of copying will earn them extra points, and what kinds will get them punished. How exciting!
In any case, many professors don’t know what counts as plagiarism either, so they rely on automatic plagiarism detectors like Turnitin to tell them. What a boon. Why reflect on the application and purpose of plagiarism norms, when a computer will just spit out a number? Sure, machine learning isn’t perfect, and routinely identifies quotations, facts, and banalities as plagiarism. But as a great philosopher once said, you can’t make an omelette without breaking some eggs.
India is no exception. Plagiarism is taboo and plagiarists are vilified. When a professor at Kumaon University in Uttarakhand was accused of plagiarism, it became a national scandal. The university appointed a committee to investigate the allegation, which eventually concluded that he was a “serial offender” and found him “guilty” of plagiarism, even though plagiarism wasn’t a crime. Similarly, when the Delhi High Court was accused of plagiarism for copying several paragraphs from a law review article without attribution, it apologized and blamed a law clerk for the oversight. As Spicy IP has observed, plagiarism scandals are increasingly common in India.
What is Plagiarism?
While copyright infringement and plagiarism are often used as synonyms, they are actually quite different. Copyright gives authors certain exclusive rights in the works they create, for a limited period of time. But it only protects original works of authorship, explicitly excludes abstract elements like ideas, and doesn’t require attribution, unless the copyright owner insists on it. By contrast, plagiarism norms require the attribution of expressions and ideas, whether or not they are protected by copyright. At least in theory, copyright creates an economic right to claim the value of a work, and plagiarism norms create a moral right to receive credit for them.
Indian copyright law is no exception. Under Indian law, copyright protects original expressions, but doesn’t and can’t protect ideas. In other words, Indian copyright protects the particular way in which a work is expressed, but not the arguments it makes or the ideas it expresses.
This fundamental principle of copyright, often called the “Idea-Expression Dichotomy,” is well-established in Indian law. For example, the economic and moral rights granted by Sections 14 and 57 of the Copyright Act of 1957 are limited to “expressions,” and exclude the abstract claims made by or embedded in those expressions. The idea-expression dichotomy protects free speech, by ensuring that copyright owners can’t monopolize ideas. But maybe it also reflects an evidentiary intuition? It’s easy to prove you wrote something, but hard to prove it expressed a new idea. That’s why copyright doesn’t even require novelty, just originality. It’s ok to be generic, so long as you didn’t actually copy.
Not so fast. Plagiarism norms say otherwise. Sure, copyright says you can copy ideas willy-nilly, but plagiarism norms insist you have to attribute them. If you don’t, get ready to suffer. The plagiarism police are relentless, and never forget a transgression. And India is no exception. In fact, Indian copyright law explicitly prohibits plagiarism, whether or not it infringes copyright. The funny part is that it is almost impossible to prove, with evidential surety that no one in the whole wide world could have thought of the idea before the person, who is seeking an attribution for the same. Does conferring any monopoly in such a situation seem fair?
Moral Rights Under the Indian Copyright Act
Under Indian copyright law, authors have certain inalienable moral rights in the works they create. Section 57 of the Indian Copyright Act gives authors rights of paternity and integrity in their works. The right of paternity entitles authors to insist on attribution of their works, and the right of integrity enables them to prevent the distortion, destruction, or mutilation of their works, if it would harm their honour or reputation.
These moral rights are based on the Berne Convention for the Protection of Literary and Artistic Works, and reflect the influence of Kantian and Hegelian theories of autonomy and personality on the concept of authorial ownership. However, giving rights to authors necessarily means taking them away from users, and moral rights are no exception. Requiring attribution means compelling speech, and preventing alterations means prohibiting speech. It may be worth it, but it isn’t costless.
In the landmark case Amarnath Sehgal v. Union of India and Ors. 117 (2005) DLT 717, the Delhi High Court explained the purpose of moral rights under Indian law by quoting Professor Mira Sundara Rajan:
“The rights of attribution and integrity are particularly apposite to the cultural domain. Apart from the interests of individual authors in maintaining their standing and reputation, these moral rights are closely linked to a public interest in the maintenance of historical truth and cultural knowledge. Moral rights also promote the development of a social attitude of respect toward individual creativity. While authors must accept the responsibilities which accompany the privileges of creative work, it is incumbent upon both the public and the state to acknowledge the value of artists’ contributions to cultural heritage.”
But moral rights exist under Indian law only because they are written into the Copyright Act, not because people generally think plagiarism is wrong and authors deserve respect. At least in theory, Indian law only protects statutory moral rights, not any old rights people think are important and justified. And plagiarism norms go a lot further to protect moral rights other than the Copyright Act. Among other things, they protect arguments and ideas, which can’t be protected by copyright at all.
In theory, it’s nice to think that moral rights encourage people to recognize and respect authors. And yet, what does that mean in practice? Surely, the public is entitled to disagree with authors, and even harshly criticize their work. After all, not every author is worthy of respect, and people disagree about who qualifies. Different strokes for different folks! People are entitled to their opinion, no matter how uninformed, unfair, or banal. Not everyone can be Lionel Trilling.
(This article is authored by Brian L. Frye and Akshat Agarwal. Brian is a Professor at University of Kentucky – College of Law and Akshat is a Judicial Law Clerk at the Delhi High Court)