Geoff Pullum's enlightening (and entertaining, as usual) post about the differences between plagiarism and allusion makes it clear that plagiarism is intellectual dishonesty of a type that roils most educators. What he says pretty well matches my experience with my own students who plagiarized. I've also had a little experience with such borrowing in the commercial world, however, and his post stirred up some thoughts about the similarities and differences between plagiarism and copyright infringement.
First of all, plagiarism is a moral and ethical problem while copyright infringement is also a legal offense. But the issues seem to be rather similar. Both plagiarism and copyright cases focus on the uses of words and sentences that are the same as (or very close to) those in the source document. Both involve borrowing of language and ideas that are not one's own without proper acknowlegement. Both require somebody to point out the passages where the alleged borrowing took place. Both involve someone making judgments about how much borrowing is enough to be problematic.
In the few cases of plagiarism I've experienced, the matter was settled by a heart-to-heart talk with the student, followed by a much- lowered grade. Seldom has the issue led to a trial-like hearing in which the students try to defend themselves and bring in a lawyer or expert witness, although this sometimes happens. I've been such an expert witness at two such hearings at Midwestern universities and believe me, they were not anything like copyright infringement trials. Nor were these hearings based on specific, indentifiable legal concepts, such as the ones that underlie copyright infringement cases.
At trial, copyright infringement uses the legal concepts of proportionality, substantiality, origninality, and substantial similarity. It's not only the amount of previously published material that matters, but also the proportion of the borrowed work in relationship to the original source. Amounts and proportion are not the same things. Even though the borrowed work may be significantly shorter than the original, amounting to as little as 5% of the ideas, words, or other measures of the source document, this 5% can reflect as much as 50% of the source's ideas or other measures. Courts struggle with this issue but sometimes it's pretty clear. For example, I worked on one copyright infringement case in which the publisher of a 111 page book claimed that 100% of the 55 major ideas in that book were found in the defendant's 4 page pamphlet, very impressive proof of proportion without even getting into the specific similarity of the language used.
Substantiality seems to involve quantity -- a lot versus a little. Here we get a bit fuzzy. Using the case I worked on, 100% seems like a substantial amount of the major ideas, but would 10% meet the plaintiff's goal? And how many identical words or expressions are enough to be considered substantial?
The concept of originality has an similarly vague definition: "some degree of creativity, even a minimal amount." Now we have to measure "creativity" and try to figure out what "minimal" means in a given case. Short phrases generally haven't been included under copyright protection, but converting present tense verbs into the past tense and changing passives to actives make a better case. The defendant pamphlet maker in the case above was a master at this. But it's still a judgment call about how much is enough.
Things don't get much clearer with "substantial" and "substantial similarity." Copyright law says that substantial similarity is present in two works when they are compared in their entirety, including both protectable and unprotectable material, especially when the junior user copies not merely the ideas, but also the "expression of the ideas" in the senior's work. Many find it hard to measure "expression of the ideas."
Ideas, words, expressions, and sentences seem to be the major focus in identifying both plagiarism and copyright infringement. Perhaps because I've worked on so few plagiarism and copyright infringement cases, I've yet to see linguistic concepts such as speech acts, speech act sequencing, topics, and topic sequencing analyzed by linguists as evidence of borrowing. If you know of any such cases, please let me know.
Posted by Roger Shuy at June 14, 2007 11:59 AM