Who Watches the Plagiarism Police? (Part-II)

[LINK TO PART I]

Why Not Plagiarism Norms?

So, how is plagiarism defined in India? It depends who you ask. One of the most important definitions of plagiarism is provided by the University Grants Commission (UGC) rules, which are intended to explain what Indian scholars and students can and cannot do.

The primary purpose of these UGC rules is to promote “academic integrity and originality.” In service of that goal, the rules prohibit “plagiarism,” which they define as “the practice of taking someone else’s work or idea and passing them as one’s own.” For better or worse, that’s a conventional – if rather terse – definition of plagiarism. But is it consistent with Indian copyright law? And more importantly, is it consistent with Indian cultural practices?

The UGC plagiarism rules prohibit Indian scholars and students from copying anything without attribution. In other words, any element of a work that is based on a previously existing work must explicitly acknowledge that work, typically with a citation. So, if you copy a sentence, you must include quotation marks and a footnote. And if you copy an argument or idea, you must include a footnote, even if the argument or idea is banal, or didn’t originate in the copied work.

And yet, this kind of copying typically doesn’t infringe copyright. Copying a single sentence is rarely sufficient to trigger copyright infringement, and copyright can’t even protect an argument or idea in the first place. If copyright can’t prohibit copying, how can it require attribution? After all, copying is permitted precisely because sentences, arguments, and ideas aren’t copyrightable subject matter.

So, what is the legal basis for the UGC plagiarism norms? Nothing. The Indian Copyright Act gives copyright owners an attribution right. But it can’t give them an attribution right in something they don’t own. If sentences, arguments, and ideas aren’t protected by copyright, there is no attribution right in them to enforce. The UGC plagiarism norms have nothing to do with Indian copyright law. On the contrary, they reflect extra-legal norms observed by the global scholarly community. Interestingly these are executive guidelines which are not supported by any parliamentary legislative whatsoever.

Of course, the UGC plagiarism norms are hardly unique in their lack of legal authority. Plagiarism isn’t a crime, or even a tort, it’s just a literary convention. And no one takes it more seriously than academics. We are fond of our “academic gift economy,” because we encourage people to copy and distribute our work. But that’s only because we don’t care about its economic value, only our reputations. Please copy, but also cite, and if you don’t, beware.

Property is property, no matter what you claim to own. Copyright owners typically want to own the economic value of their works, and object when anyone creates or distributes copies without their permission. Academics want to own the goodwill associated with their works, so they object when anyone copies without attribution. While there’s nothing intrinsically wrong with either, there’s also nothing morally special about attribution claims. It’s just another kind of property claim. We ought to ask when it’s legitimate, and when it isn’t. We also need to ask whether conferring such privileges upon the people already privileged to showcase their works, and who often have an effective access to an audience (due to their social position), in a way jeopardise the claims/ social standing/ learning capability of the structurally unequal?

Attribution is Key

Unfortunately, Indian courts love plagiarism norms, and simply apply them as if they were law. When plaintiffs complain about plagiarism, courts tend to find in their favour, whether or not they can actually make out a claim for copyright infringement. They are happy to punish defendants for using banal phrases, trivial ideas, and cliched concepts, simply because they failed to attribute or compensate.

For example, in Suresh Jindal v. Rizsoli Corrire Della Sera Prodcioni T.V SPA (1991 Supp (2) SCC 3), the Supreme Court of India recognized a “right of credit” for providing “some services” to the production of a film, whether or not the contribution was copyrightable. After all, Jindal “did play some part in making the film possible and the respondents are acting unreasonably in denying him the benefit of the limited acknowledgement he is entitled to have.” If you contribute a peppercorn of value, you are entitled to a peppercorn of credit, whatever copyright says about it.

The Delhi High Court took the idea and ran with it, explicitly divorcing attribution from copyright. In Neha Bhasin v. Anand Raj Anand (132 (2006) DLT 196), it held that Section 57 creates an attribution right for anyone who contributes anything to a work, whether or not their contribution was copyrightable. But wait, wasn’t section 57 a part of the Copyright Act?

But that’s not all. In Fox Star Studio v. Aparna Bhat and Ors. (CM(M) 15/2020), the court held that Section 57 can even create an attribution right in factual information. The defendants produced the movie Chapaak, which was “based on a true story.” The plaintiff provided information about a person who was the basis for a character in the film. And the court held that they were entitled to a credit for their contribution.

Whatever you think of plagiarism norms, these opinions are something else. They reflect attribution norms run off the rails. For one thing, there is no plausible legal basis for their conclusions. And for another, not every contribution requires attribution. Copyright is broad enough already. If everyone who works on a project is an author, then no one is.

Who Owns Ideas?

Let’s reframe the problem. Indian courts have internalized plagiarism norms. But they haven’t asked whether plagiarism norms are consistent with Indian cultural practices. And it would be a shame if Indian courts prohibited people from engaging in traditional, culturally important forms of expression, simply because they ran afoul of plagiarism norms. After all, plagiarism norms are nothing more than an extra-legal way of claiming ownership and demanding attribution. But do they always reflect the values of the society they claim to regulate?

In a society like India, access to expressive resources and to an audience is limited to those who satisfy the aesthetic judgments of publishers, distributors and their corporations. The privilege of being able to showcase expressions effectively is limited to the few. Even the privilege of being able to record content and put it out in “effective” visible circulation is, more often than not, limited and non-enforceable for most Indians. The political society in India is highly diverse, with grave concerns about inequality and stereotypes – which certainly contributes to prioritizing some voices over others. Allowing ownership or property like rights over ideas or thoughts within an expression allows the privileged to claim them as their own, to the disadvantage of those who could not get this “first mover” advantage, primarily due to structural reasons including those dictated by the prevalent hierarchies in the society. Such a practice reinforces social hierarchies by glorifying the efforts of a few privileged people as against the disadvantaged. Many people could have (and in all probability would have, or even did) thought of the argument or idea or concept of a piece, or the tonal expression in the song, but lacked the resources to put it to paper or a record, and especially on a platform which made their works accessible. What about them? Equal access is a myth, isn’t it?

An example is a popular band, which has the ability to record and release a song, copying a melody or riff from a band that isn’t a part of the “scene” and doesn’t have an audience or the ability to record its songs. Whatever copyright says about ownership, plagiarism norms will associate attribution to the popular band, and enable it to prevent others from copying as well. Why should we legitimize that kind of control? Everyone should be able to make musical ideas their own.

Further, India, in its practice of culture and even knowledge dissemination has long followed an aural tradition, involving oral transmission of content, culture and ideas. The pedagogy of musical knowledge and compositional dissemination (the Guru-Shishya tradition) as well the pedagogy of knowledge dissemination (the Gurukul tradition) has traditionally been oral, until colonially-induced ideas of fixation were imposed, as a tool to own and control knowledge. Exclusivity and ownership were often the main tool of dominance for colonizers. What about such traditional practices?

It’s time we accept what we already know, but ignore or refuse to accept: Ideas and expressions are never unique or created in a vacuum. They develop by dialogue and exposure to perspectives. Ownership only impedes learning and dialogue around information and culture. As the DU photocopy decision (single bench- CS (OS) 2439/2012) observed, copyright “is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge.” Copying ideas, imitating, mimicking, remixing, paraphrasing are, in fact learning exercises often formally used in education. Everyone knows that copying helps students learn. But plagiarism norms and copyright prevent students from learning by copying, and make learning more expensive.

For example, Indian classical music and dance learning have a long-standing tradition of copying, where performers imitate a composition sung by someone, or the notes therein, to accustom themselves to the song, learn how to perform it, and transform it into their own composition. Restricting access to compositions, or the ability to practice imitation, without “due” attribution to someone, who may not even be the “originator” in any meaningful sense, in fact negates the essence of this indigenous method of learning, and conceives a new normal which states – “only western methods of learning are allowed. Others are not.”

As Audre Lorde observed, “The master’s tools will never dismantle the master’s house.” Copyright and the concept of plagiarism are the quintessence of the colonial ideology of ownership and control. India should reject them, as it has rejected other colonialist ideologies, and find its own way of conceptualizing, recognizing, and celebrating the diversity, beauty, and depth of works created by Indian authors.

 

(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)

Cite as: Brian L. Frye, Akshat Agrawal, ‘Who Watches the Plagiarism Police? (Part-II)’ (The Contemporary Law Forum, Nov. 27, 2020) <https://tclf.in/2020/11/27/who-watches-the-plagiarism-police-part-ii> date. 

 

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