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2 Plagiarism vs. Copyright Law: Is All Copying Theft?

Jessica Reyman

Before You Read: What images or emotions are conjured when you hear the phrases “plagiarism” and “allowable copying”? Consider what it means to “own” an idea.

Scenario 1

A student uses a template when creating a formal report for class. She has seen this method used for composing in her internship, where she writes letters, reports, and other documents for a company. She finds a model of a formal report on the Internet that closely matches the model she found in her textbook, and uses it as a template. She copies the headings and formatting, and even some of the sentence structures from various sections. She pastes her own content into the report. Is this stealing?

Scenario 2

A student is creating a website for his writing class. While he is confident in his ability to write the content for the site, he does not have the time or resources to learn advanced Web design and coding skills before the assignment is due. In order to submit a professional-looking website, he copies some source code from an existing website and pastes it into his own source code. The student has written all of the content for the website on his own, but the architecture, structure, organization, and user interface of the site is mostly derived from the source code he has copied from an existing website. Is this stealing?

Scenario 3

A student submits a research paper that summarizes and reports on information she has found in journals, books, websites, and blogs. In the paper, she cites many sources, but one website is particularly useful. From this source, she cites liberally, even copying and pasting whole paragraphs of text that support her points. She provides attribution in each instance, for both paraphrases and direct quotations from the source. Is this stealing?

Many students fear they may be “stealing” or committing intellectual property “theft” whenever they make use of any existing material in their writing. They have been warned against such uses by several sources. Instructors and university administrators tell them they must follow plagiarism policies or they will be expelled from school. In the news, they see their peers venture into the professional world and face public criticism for plagiarism. Consider the 2003 scandal surrounding Jayson Blair, a recent college graduate who was employed as a staff writer for the New York Times, who allegedly plagiarized an article from another newspaper; and, the 2006 accusations against undergraduate student Kaavya Viswanathan for allegedly plagiarizing passages for her novel, How Opal Mehta Got Kissed, Got Wild, and Got a Life. Warnings against copyright infringement claims are also prevalent, as students are inundated by the messages from media companies and campus officials alike, who counsel them on the dangers of pirating music and movies from the Internet. Some universities have even aided the entertainment industry in pursuing legal action against individual students caught illegally downloading files, resulting in costly settlements. These stories and others have infiltrated conversations on many college campuses, warning students against copying with a seemingly simple message: “Don’t steal.”

However, the message is not that simple. Students often hold misconceptions about what constitutes theft of intellectual property. Such misconceptions have the potential to lead students to unwittingly commit a legal and/or ethical offense by assuming that all copying is acceptable, a great concern for college instructors and administrators. Alternatively, they can lead to students not using the material in question for fear of punishment, another serious problem that can frustrate students’ writing efforts and lessen the value of their work. Students will want to better understand the nuances inherent in defining what constitutes plagiarism and copyright infringement so that they can make more informed choices about when and how to use external sources. As a starting point, this chapter seeks to complicate the message of “don’t steal” in two ways. First, I show that what intellectual theft refers to is actually two separate offenses: copyright infringement and plagiarism. While the concepts are intertwined in popular discourse as constituting “stealing,” the label conflates and oversimplifies two distinct and complex offenses. Campus administrators, instructors, and students often misunderstand the relationship between plagiarism and copyright law. Many think plagiarism is wrong because it is illegal, and many believe attribution affects cases of copyright infringement. These misunderstandings, among others, can confuse conversations about student writers’ ethical and legal responsibilities when using sources. After defining key differences between the two concepts, I then show how much of what is regarded as stealing might actually fall within the range of what is considered allowable copying. For instance, do the tasks of downloading papers from an online paper mill, and cutting, pasting, and reusing excerpts of text with attribution demand equal treatment under plagiarism policies and under the law? Is either acceptable practice? In the second part of this chapter, I argue for a distinction between allowable copying and theft that acknowledges the gray areas that exist between original composition, copyright infringement, plagiarism, copying, and reusing text.

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 whether the copying required by the common activities of students and instructors is lawful or not.

Attribution of Sources

The third and last distinction I’ll make between plagiarism and copyright infringement is the role of attribution, or citing sources. Many students and instructors alike believe that as long as writers cite their sources, they are free and clear of any accusations of intellectual theft. While attribution is important for avoiding plagiarism claims, copyright infringement does not directly relate to the presence or lack of attribution when copying a work. This distinction is based on the differences between the types of harm resulting from each offense. In acts of plagiarism, the harm is related to academic integrity. Plagiarism is considered cheating: if grades and degrees are awarded according to individual effort and ability, then plagiarism is a dishonest representation of this effort and ability and, thus, an offense against the academic integrity of the institution. Because plagiarism is an ethical violation rather than a legal violation, attribution plays a key role. To avoid claims of cheating, a student is required to cite sources to demonstrate that she or he is not intending to present as her or his own work that which she or he has not produced. Attribution provides an ethical means through which to distinguish a student’s work from another’s in an assignment submitted for a grade.

Copyright infringement, on the other hand, serves to protect the rights of an author to a reward for her or his work and incentive for creating future works. Copyright infringement claims are usually brought under the legal system when an act of copying has caused some sort of loss of monetary value in the work. If a person writes a book, but another person copies parts of it, markets it, and sells it, even when giving attribution to the original author, the new work will compete in the same market as the first book and negatively affect its sales. This is not to say that writers may feel free to copy a copyrighted work if it is for a nonprofit purpose. Some nonprofit uses also have an adverse effect on the value of intellectual and creative works. Therefore, in the case of copyright infringement, even if attribution for a source is given, copying, using, and/or distributing another’s copyrighted work may prevent an author from receiving reward for their work. While attribution will assist with plagiarism charges, in itself it does not negate copyright infringement claims.

Misconceptions about Copyright Infringement and Plagiarism

Given these key distinctions between plagiarism and copyright law, we can begin to complicate the seemingly simple message perpetuated in popular discourse often circulated on college campuses, “don’t steal.” We have seen that not all copying is treated equally; that is, different types of copying for different purposes yield different consequences. Based on the discussion above, we know that some copying may constitute plagiarism but not copyright infringement, and vice versa. We might further complicate the relationship between plagiarism and copyright infringement by considering the ways popular misconceptions of intellectual theft are often in conflict with the common composing activities of recycling and reusing materials that student writers engage in, such as those presented in the scenarios at the opening of this chapter. It is important to recognize that there are other “gray areas” that exist between what is considered intellectual theft under plagiarism policies and the law, and the range of composing activities that require the copying and reuse of existing materials.

Is All Copying Theft?

Often in writing classes, the act of copying is equated with intellectual theft, which is contrasted with the notion of originality of words and ideas. What makes this dichotomy between theft and originality problematic is that an autonomous, proprietary model for textual ownership conflicts with what we understand about actual composing processes. As Rebecca Moore Howard points out in Standing in the Shadows of Giants: Plagiarists, Authors, Collaborators, student writers move toward membership of a discourse community by using other writers’ texts and drawing from multiple voices. For instance, when learning to write a research paper, students are often asked to prepare notes or create paraphrases, summaries, and direct quotations of existing literature on a topic, and then later arrange them within the structure of their own main points or arguments. This work is often done digitally, by copying and pasting source material into a file that eventually becomes reused and revised and built upon, resulting in a polished research essay. In this process, we can see that the distinctions between copied texts and students’ own words can become less obvious, and the dichotomy between theft and originality can become blurred. Writers relying on this process do not create new works from nothing, in isolation, but rather they borrow, build on, and interact with other texts with which they have come into contact. This act of writing is fundamentally collaborative with other texts, relying on reuse and integration of existing works.

In fact, we copy works without plagiarizing or committing copyright infringement all the time. There are many examples of ways writers copy and reuse materials that do not constitute an unethical act of intellectual “theft.” For instance, consider the following activities in which writers copy others’ works:

 Using models or templates when writing within a new genre or completing an assignment (i.e., using the design, layout, categories, and format, but plugging in one’s own content);

 Summarizing or paraphrasing ideas from texts into notes when preparing to write a research paper; and

 Incorporating ideas from a peer, writing tutor, or other influential source when revising a piece of writing.

While these activities obviously require some level of copying, they are also common activities engaged in by writers as we perform the activities required of us in the classroom. Therefore, rather than understanding that “all copying is theft,” we might instead understand that “some copying is allowable.” The task for instructors and students is to think critically and carefully about under what circumstances and for what purposes the copying occurs.

This is not to say that some copying is not unethical or not allowable in certain contexts. There is a tension that exists between borrowing too much from an existing source and building on a source to offer something new: Copying and passing something off as your own can be an ethical and legal violation, but copying something with the intention of adding value, or because it is part of a natural composing process, may not. For instance, a writer might choose to create a parody of an existing work of art, perhaps a parody of a beauty advice column from Cosmopolitan magazine that provides social commentary on media-imposed standards for beauty inflicted on women. This act of copying would likely be an ethical and lawful form of copying, contributing to the advancement of knowledge on issues of gender and the media. However, downloading a copy of a research paper on media portrayals of standards of beauty and turning it in for class credit is an obvious ethical (and likely legal) violation, offering no added value in the creation of a new work. The point here is that there are gray areas that exist between different forms of copying: Some forms of copying are beneficial and others detrimental to the promotion of learning.

Does the Internet Contribute to Plagiarism?

Seeking to further complicate the conflation of all types of copying as intellectual “theft,” it is also useful to think about a common belief that the Internet itself contributes to intellectual theft. Writing online often involves collaborating with other writers or cutting, pasting, and reusing text, all of which may be at odds with common understandings of plagiarism policies and/or copyright law. It is not uncommon to hear on our campuses and in our classrooms that the Internet makes plagiarism easier, or that cutting and pasting material from the Internet should be avoided altogether. In these statements and others like them, the Internet itself is credited for undesirable outcomes: the facilitation of legal and ethical infractions. Rather than viewing the use of writing technologies as facilitating common modes of composing, these perspectives posit writing electronically as causing certain offenses. The common activities of student writers—copying and pasting excerpts from online texts when conducting research, finding templates and models from other sources, relying on existing discussions to inform and guide their own writing—are each facilitated by Internet technologies. However, these same technologies are often presented as inherently dangerous, as causing a rise in cases of plagiarism or making copyright infringement more prevalent. We should be particularly careful about assuming this negative approach to the relationship between technology and writing. Instead of “blaming” technology for unethical or unlawful practices, we might instead view technologies as facilitators, through their copy, paste, and distribution functionalities, of the strategies fundamental to contemporary composing practices.

The misconceptions about copying in composing processes presented here are only two among many. Broadly speaking, the approaches to plagiarism and copyright infringement in writing classrooms and on college campuses often appear to have a common goal of exposing intellectual thieves, with the ultimate intention of denouncing and punishing them. Students who commit ethical infractions by cheating certainly deserve punishment within the academic setting, and students who knowingly commit copyright infringement are certainly liable under the law. Unfortunately, contemporary approaches to the two offenses do not offer effective strategies for addressing the range of activities that student writers engage in that might be allowable copying. Too often, a student writer engaging in any of a wide range of activities may be unfairly accused of either plagiarism (at the academic level) or copyright infringement (at the legal level) while performing the processes inherent to composing in a digital age.

Conclusion: Toward an Understanding of Allowable Copying

In light of public discourse surrounding recent offenses of plagiarism and copyright infringement, the writing activities that many students encounter might be unfairly characterized as illegal and/or in violation of plagiarism policies. If we, as students and instructors of writing, seek to better understand the dangers of the label “stealing” as applied equally to all copying, we need to more openly acknowledge the range of acceptable copying and reuse of intellectual property that is inherent in many composing practices. With the aim of distinguishing between acceptable copying and theft, it’s useful to make explicit those types of composing that occur within the gray areas that exist between original composition, copyright infringement, plagiarism, copying, and reusing text. To do so, let’s return to the three scenarios presented at the opening of this chapter. Based on the content of this chapter, each might be considered as copyright infringement, plagiarism, both, or neither.

In Scenario #1, where the student relies on a model for a formal report, this student is behaving in a manner consistent with common workplace practices (for more on the discrepancies that exist between professional writing practices and plagiarism, see Logie; Reyman). Recall that this student uses the formatting and structure of the report, but plugs in her own content. In determining whether this copying is acceptable or not, we will need to consider the circumstances of the particular situation. It is essential to know whether the student has provided attribution for use of this template. If not, this copying may very well constitute plagiarism, particularly if a requirement for the assignment were to create a professional layout and design for a report. Without attributing the source of the model, the student could be accused of misrepresenting the design and layout as her own. On the other hand, if the assignment did not ask the student to demonstrate design skills, then the student may meet instructor expectations by following a stock format for a particular type of report (such as the IMRAD format for scientific reports). This type of copying would most likely not be considered copyright infringement. Because a model for a report likely constitutes an idea, rather than an original expression of an idea, it would not likely constitute a legal offense.

Scenario #2 involves the copying of lengthy passages of text into a research report, with correct attributions of all passages. Attribution counters accusations of plagiarism, even though the essay may not offer as much of the student’s voice or thoughts as the instructor would like, but the act of attributing to its source a copied passage does not necessarily allay all claims of copyright infringement if this essay were published or distributed outside of the classroom. In this case, the student would need to consider the four factors of Fair Use to determine whether this copying is lawful. While it is for a nonprofit, educational purpose, the student would also need to consider the other three factors—the amount of use, the nature of the work, and the potential effect on the market for the original work—to determine whether or not this is an example of allowable copying. The length of the passages the student has copied could weigh against Fair Use when considering the four factors.

Finally, in Scenario #3 we see the copying of HTML code for a website. Again, considering the context for the use is essential. Since the instructor may expect students to demonstrate that they understand the principles of good Web design by creating their own architecture, navigational structure, and page design elements for a website, then this copying would likely be considered plagiarism. Attribution of the source of the code may serve to counter such accusations. At the same time, plagiarism would not be an issue if the instructor explicitly recommended that students use an existing website template to present original content. Further, because some HTML code is protected by copyright and presumably, the websites are available to the public, the student would need to consider carefully whether the copying might also be an infringement of copyright. She would need to consider whether her copying of the code might be considered Fair Use according to an analysis of the four factors.