Plagiarism vs. Copyright Infringement
In order to complicate the notion of intellectual theft, it is first important to make clear distinctions between the institutional concept of plagiarism and the legal concept of copyright infringement. The two concepts are two distinct offenses that student writers face, both in their current academic settings and in their future professional contexts. As defined in the Council Chronicle, a publication for the National Council of Teachers of English (NCTE):
Plagiarism is using someone else’s idea (usually a written idea) without giving proper credit for the idea, a failure to cite adequately. (“Plagiarism and Copyright”)
[and]
Copyright infringement is using someone else’s creative idea, which can include a song, a video, a movie clip, a piece of visual art, a photograph, and other creative works, without authorization or compensation, if compensation is appropriate. (“Plagiarism and Copyright”)
Using this definition as a starting point, there are several distinctions that I’ll parse so that we can better understand the differences between the two: the offense of copying ideas vs. copying the expression of those ideas, the practice of attribution, and institutional vs. legal ramifications.
Copying Ideas vs. Expression
The first and most fundamental distinction to be made between plagiarism and copyright is what type of copying constitutes each activity. Plagiarizing a text and committing copyright infringement of that same work may not result from the same behavior. This disparity arises because plagiarism policies and copyright law protect different things. Plagiarism policies are designed to protect the academic integrity of the classroom and the university; they attempt to prevent cheating. Copyright law, on the other hand, is designed to protect the exclusive rights of authors to seek rewards from copying, distributing, and performing works they’ve created; it attempts, primarily, to protect a vibrant and dynamic economic market of creative production.
Definitions of plagiarism are specific to individual academic institutions and sometimes to departments or units within a given institution. Here is the definition of plagiarism at my institution, Northern Illinois University, which I believe is typical of many definitions: “Students are guilty of plagiarism, intentional or not, if they copy material from books, magazines, or other sources without identifying and acknowledging those sources or if they paraphrase ideas from such sources without acknowledging them” (Undergraduate Catalog 49). We can see from this definition that plagiarism refers to both copying of exact text (“material from books, magazines, or other sources”) in addition to using the ideas contained within those sources (“paraphrasing ideas”), even if they are rewritten in a student’s own words. Copying both ideas and the expression of ideas without acknowledging a source are violations of plagiarism policies.
Copyright law does not protect this same type of activity. Copyright provides the creators of original works of authorship with the exclusive rights to copy, distribute, and perform their works, among other privileges. Such protection, however, only applies to the “expression” of ideas, not the ideas themselves. In order for a work to be protected by copyright, it needs to be “fixed in a tangible medium of expression.” Therefore, many types of works are protected by copyright as soon as they become fixed in a tangible form—such as an essay, a book, a website, a motion picture, a song, or an architectural work, among others. At the same time, ideas themselves are not copyrightable. For instance, while a particular motion picture (Pretty Woman) is copyrighted, the idea for a common plot theme contained within it (“rags to riches”) is not. Think of all of the other movies that have used this same plotline before and since the release of Pretty Woman, each lawfully doing so due to the fact the copyright law does not protect ideas.
Institutional vs. Legal Offenses
Another important distinction to be made between plagiarism and copyright infringement is that the two offenses are enforced by different governing bodies. As the NCTE points out, “Schools enforce plagiarism. The courts enforce copyright infringement” (“Plagiarism and Copyright”). While plagiarism is an academic offense, punishable within the school or university setting, copyright infringement is a legal offense, punishable under the United States legal system.
Punishment for plagiarism runs the gamut from a verbal reprimand, to earning a failing grade on an assignment, to failing a class, to being expelled from an institution. Punishment is often assigned at the discretion of the individual instructor or administrative body (such as an academic integrity committee) at a given school or university; it is not dictated by the legal system. As an example, the plagiarism policy at my institution says that “Students guilty of, or assisting others in, either cheating or plagiarism on an assignment, quiz, or examination may receive a grade of F for the course involved and may be suspended or dismissed from the university” (Undergraduate Catalog 49). The wording “may receive a grade of F” and “may be suspended or dismissed” (emphasis added) shows there is a variety of levels of punishment for students caught committing plagiarism.
Copyright infringement claims, because they are supported by federal law, are enforced according to a single definition under the legal system. Punishment for committing copyright infringement includes fines and, because it is a federal offense, even the possibility of a prison sentence. The legal system decides what activity is infringing and what constitutes a fair punishment for the crime. To decide whether a particular use is infringing or not, the courts often rely on what is called the Fair Use Doctrine of U.S. Copyright Law. The Fair Use Doctrine in copyright law specifies that “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” are all instances in which otherwise infringing activity would not be subject to penalty. The Fair Use clause is used within the legal system to evaluate each use according to this four-point test:
In determining whether the use made of a work in any particular case is a Fair Use, the factors to be considered shall include:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. The effect of the use upon the potential market for or value of the copyrighted work. (U.S. Copyright Law)
It is not within the scope of this essay to offer a lengthy commentary on the Fair Use clause and its applicability for students and educators. Suffice it to say, the effect of this four-factor balancing act has been considerable uncertainty and confusion over whether certain uses are infringing or not. In order to understand whether a particular use is a Fair Use, creators must carefully weigh each factor against all other factors for each particular use in each instance. Nevertheless, the Fair Use Doctrine remains perhaps the most important and wide-reaching exemption from copyright protection for students and instructors, whose use of others’ copyrighted works is often for the purposes of criticism, commentary, teaching, or research. It is this important exemption that the legal system relies on most heavily to determine