September 21, 2017 Legal, Musicology No Comments

What’s the difference between plagiarism and copyright infringement?

 

It’s largely a matter of what’s immoral as opposed to what’s illegal.

Let’s take plagiarism first. When we throw out the term “plagiarism,” we mean “taking and passing off another person’s words or ideas as your own, without attribution (crediting the source),” and it’s considered wrong, immoral, and unethical — each an idea of what’s appropriate and acceptable to society. This immorality comes at a cost, a penalty or punishment meted out by colleagues, by society, by the author who has been wronged, or maybe just by one’s conscience. The plagiarism results in condemnation, scorn, and shunning; a reputation is tarnished; the wrongdoer’s own conscience will punish itself through guilt and insecurity.

So plagiarism is wrong, but is plagiarism “illegal?” Should it be?

We’d like our system of laws to be in sync with what’s right and what’s wrong in general, but making something “illegal” is to threaten punishments for disobeying, apportioned not by society, but by government. Government is representative of society of course, but it’s distinct particularly when it comes to enforcement and doling out punishments. What’s immoral certainly may also be illegal, but we don’t always want our government to be a moral policing force.

Whereas plagiarism is a moral wrong, copyright infringement is a legal one.

Copyright law protects original works of authorship fixed in a tangible medium — things like poetry, novels, movies, songs, computer software, and architecture. It does not protect facts, ideas, systems, or methods, but only the original works that might result from these things.

What does “original” mean, and how do you establish it? Two doctrines set the standards. The “Modicum of Creativity” doctrine and the antiquated “Sweat of Brow” doctrine guide the meaning of “originality” in copyright law. The “sweat of brow” doctrine grants originality based upon the effort, time and resources invested by the creator. But U.S. copyright law moved away from “sweat of brow” in favor of the “modicum of creativity” doctrine which says the work must be the product of independent creation and that a sufficient amount of intellectual creativity and judgment has gone into the creation of the work. This language is interesting, that just a modicum (a tiny bit) of creativity is potentially sufficient to create an original, protectable, copyrightable work.

Copyright, the “right to copy,” gives its holder the exclusive right to publish, sell, perform, and reproduce the copyrighted work. This is a business matter. Only the copyright holder can charge money for publishing, selling, performing and reproducing the work. And anyone else who does this, even if for free, is infringing upon that copyright holder’s exclusive right.

Although plagiarism is wrong, we don’t sue for it. It’s a moral wrong. We sue for copyright infringement. Copyright infringement injures somebody monetarily and it is illegal. And that’s the distinction.

Written by brianmcbrearty