Plagiarism in the Cyberspace | Copyright and Cyber Law

Plagiarism in the Cyberspace | Overview

• Plagiarism in India
• Law Governing Plagiarism
• Law of Fair Use
• Case Study
• Conclusion

This paper aims at first understanding plagiarism while finding out how it is regulated in India and how it finds its place in copyright law. Furthermore, the paper shall focus on how fair dealing finds its place in the cyberspace as a valid exception to the rights granted to copyright owners. The last stretch of the paper stands as a case study.

I. Plagiarism in India

The incorporation of somebody else’s work into your own, with or without their consent and presenting it as your own without full acknowledgement or citations, is referred to as plagiarism. More often than not, plagiarism could be completely unintentional, however, it is one of the most severe violations of the field of academic writing.

To plagiarize essentially means to steal and pass off the ideas or words of another as one’s own. It is fundamentally literary theft and can be considered to be fraud because it usually contains both elements, i.e. stealing one’s work and then lying about the theft.

Plagiarism in India is considered as a severe morally unethical issue, but not a crime. Since someone else’s work is misrepresented to be one’s own work, it does amount to fraud. When the entire act of plagiarizing is done dishonestly, it does amount to cheating.

However, within copyright law in India, when a substantial portion of the copyrighted work is copied without any permission from the owner or the knowledge of the owner, it amounts to criminal proceedings in the form of copyright infringement and violation of the author’s special right to be credited for his work.

While paraphrasing material, plagiarism is avoided if the source of the work is properly cited to the concerned author. It is important to acknowledge the work created by others as it is rightfully their intellectual property and due credit is to be given when taken from them.

The ethical issue of paraphrasing and mixing it up with plagiarism is very common and is often seen in groups of students who find it easier to complete their assignments via paraphrasing or plagiarizing. It’s important for students to observe academic codes and credit the writer even if the student is merely incorporating their ideas into his own paper.

Bill Gates refers to plagiarism as intellectual property theft and states that with the growing use of computers and the internet, the issue of plagiarism is at an all-time high.

In most cases of plagiarism, copyright infringement is called upon. However, plagiarism merely is the user of the author’s work without attributing it to him whereas copyright infringement is charged when the author’s work is used without the permission of the author wherein the work is protected by copyright. Thus, plagiarism is an act related to moral wrong as opposed to legal action and therefore, plagiarism may arise without copyright infringement.

II.Law Governing Plagiarism

Since plagiarism is more of immoral unethical conduct, the right not to be plagiarized is not specifically recognised by any existing statute in India. However, section 57[1] of the Copyright Act, grants the authors a special right to claim authorship of their work and be attributed for their work. This right is essentially moral and perpetual in nature.

Section 63[2] of the Act considers copyright infringement as a criminal offence and awards punishment for violation of section 57 too. The convicted infringers would be awarded imprisonment ranging between 6 months to 3 years and would also compensate in monetary terms by paying a fine.

The violation of an author’s right to be credited along with copyright infringement, are both civil wrongs. In case of a civil suit, the remedies usually awarded could be injunctions, damages, delivery of accounts of profit et cetera.

The person liable for plagiarism is the one claiming the copyright of the work. In most cases, the publisher has an exemption clause in their agreement with an author wherein, in specific cases and due to the wording of the agreement, the author may be held liable and the publisher gets an opportunity to claim immunity.

Plagiarism basically constituted a false claim of authorship regardless of the material that is protected and thus, the author of the same is the one usually responsible for academic credit. Generally, claims of plagiarism lead to claims of copyright infringement and in cases of copyright infringement, the publisher is the party usually held liable.

In 2015, the Delhi High Court had plagiarised thirty separate paragraphs of its judgement in the case of Roche v. Cipla, from a law review article that was written by two distinguished authors in the Queen Mary Journal of Intellectual Property.

Upon arguing, the Court acknowledged the truth and apologised to the authors. The responsibility of the plagiarism, in this case, was laid down to an intern who was in charge of writing down the precise facts of the case involved.

While India doesn’t have a particular statutory body to deal with academic plagiarism, the case of professional ethics must be respected and given importance to so that individualism and the art of creative writing don’t lose its stance in the country and retard our literary growth.

III. Law of Fair Use

Section 52(a) of the Copyright Act[3] provides for exceptions to infringement in the form of ‘fair dealing’. The term fair dealing refers to the use of literary, dramatic, musical or artistic work for private uses including research, criticism, review and for the purpose of reporting current events in a newspaper, magazine or similar periodical, or by broadcasting or cinematographic film or by means of photographs. Thus, these acts as considered to not infringe the existing copyright and are instead, considered as fair use of copyright work.

The defence of fair dealing initially originated as a doctrine of equality which allows the use of certain copyrightable works, which would have otherwise been prohibited and would have ideally amounted to an infringement of copyright. The central idea behind the doctrine is to prevent the stagnation of the growth of creativity for whose progress the law has been designed.

The doctrine of fair dealing is enshrined in Article 13 of the TRIPS Agreement and the Berne Convention on Copyright. Most territorial copyright legislations have given place for this doctrine in their law, however, there’s still a difference if the individual laws of fair dealing enacted in different countries.

As compared to the US, the Indian copyright law is often regarded as very limited and restrictive since there is an exhaustive list of actions which come under the scope of fair dealing. Thus, the Indian law of fair dealing work strictly within the framework of the enlisted actions and as adopted by Section 52.

Indian Courts have since explored and unveiled the facets of fair dealing and are now coming to the conclusion that there cannot be a definite or exhaustible list of uses which can come within the purview of fair dealing. They further stated that it would be much fairer when the decision is based on facts and circumstances of each case.

In a case tried by the Delhi High Court[4], the plaintiff claimed that the defendants amounted to an infringement of their copyright wherein the defendants broadcasted a TV show with a documentary on the life of singers and they perform their own songs. While the singer sings, clips of movie scenes copyrighted by Yashraj Films were shown in the background.

The defendants claimed fair dealing, however, the Court restrained them from doing so. This decision wasn’t considered to be very fair by a lot of IPR experts, however, the reason behind why the decision had its stand, is due to the fact that the use of the work did not come within the exhaustive list that is provided under section 52. Thus, the defendants were deprived of any remedy with regard to laws governing fair dealing.

One of the most cited cases worldwide for digital copyright infringement[5] is the case of Napster, wherein the plaintiff was sued by the defendants, for a person to person file sharing. Napster provided the software, whereby the user was allowed to share MP3 files stored in his computer to other users of Napster.

Since the case was filed, various music companies have been seeking almost USD 100k for each copyright-protected song downloaded using Napster. Eventual settlement then resulted in Napster giving a third of all future profits to the settling parties and by 2000, Napster Inc. was shut down.

IV. Case Study

This study revolves around the iParadigms case that acts as a precedent for plagiarism laws and was litigated in the USA and decided in April 2009.[6] The issue in this present matter was whether unauthorized digital archiving of student papers for purposes of preventing plagiarism constituted fair use.

Facts of the Case

iParadigms was owned and operated by the Turnitin plagiarism detection service which was an online system that analysed written work to detect cases of plagiarism. The service was mostly offered to universities and high school educators who were allowed to verify their students’ original work.

The process involved would start with the students submitting their work on Turnitin.com using a password that is supplied by their educator. The Turnitin system would then compare the students’ work against other submissions and a database of journals, articles and periodicals that is in the system.

Once compared, it would generate an originality report for the educator stating the percentage of work that may not be original.

If the educator archived the students’ work within the system, that piece of work would then become part of the database that Turnitin had. Students were met with a clickwrap agreement when registering for the website, and the terms of this agreement contained language that absolved iParadigms of any liability related to the use of this system.

The four plaintiffs, in this case, were students of high school who required submission of written work to Turnitin so as to receive credit in school. These schools also chose to archive the students’ papers on the system.

Three of the plaintiffs submitted their work to Turnitin with a disclaimer objecting to archive their work, however, their works were archived despite the disclaimer. The fourth plaintiff, A.V., submitted his work using a password made for students who were enrolled in the University of California, San Diego that was provided by the educator.

District Court Ruling

At the District Court, the summary judgement was granted in favour of iParadigms based on the fact that the students agreed to the terms and conditions via the clickwrap agreement when registering in the Turnitin system.

The Court further stated that the disclaimer attached to the students’ submission didn’t alter the agreement. The Court additionally went forth to state that the actions of iParadigms qualified as fair use since the usage of the work was transformative and didn’t impair the market value of the work.

The plaintiffs and defendants cross-appealed the District Court’s holding to the U.S. Fourth Circuit.

Appeal to the Fourth Circuit

The Fourth Circuit considered the District Court’s summary judgement order as to the plaintiffs’ copyright infringement claim. The Court outlined the statutory basis of copyright law and the doctrine of fair use through the four-factor test that is present in the US Copyright Act.

• First Factor – Purpose and Character of the Use

The Court stated that in considering the character of iParadigms’ use, the goal of an analysis of this factor should be to determine whether the use merely superseded the objects of the original creation or instead, added something new that provided a further purpose or a different character.

The plaintiffs argued that there was a commercial nature involved wherein iParadigms generated millions of dollars in revenue while accumulating this database of students’ original work. The Court in response stated that though commercial use does weigh against a finding of fair use, it must be weighed along with the other factors in fair use decisions.

The Court concluded that the District Court had thus, correctly recognized the commercial nature of iParadigms’ use and appropriately weighed it against the other factors involved. The Fourth Circuit heard two other arguments from the plaintiffs, however, reaffirmed the District Court’s ruling.

• Second Factor – Nature of the Copyrighted Work

The Court states that fair use is more likely to be found in factual works than in fictional works. The plaintiffs argued that the District Court failed to consider that the students’ work was unpublished and thus, the analysis of the second factor was invalid.

In response, the Court stated that the copyright act specifically states that the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all above factors.

• Third Factor – Amount and Substantiality of the Portion Used

The Court here considered that the amount and substantiality of the portion used in relation to the copyrighted work as a whole and that generally, as the amount of the copyrighted material that is used increases, the likelihood that the user will constitute fair use decreases. The Court further dismissed other arguments and found no error in the District Court’s analysis.

• Fourth Factor – Effect on Potential Market

The Court emphasized here that use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted material need not be prohibited in order to protect the author’s incentive to create. The plaintiffs argued that the District Court did not consider the potential market in determining that there was no adverse effect.

The Fourth Circuit disagreed and reasoned that because the use was transformative and the Turnitin system merely suppressed demand for the market of student-created work, no market substitute was created and that this type of economic harm is not protected by copyright law.

Considering an analysis of all these factors along with other arguments presented, the Fourth Circuit concluded that iParadigms’ use of students’ copyrighted work constituted fair use and that the District Court had properly issued its summary judgement on the copyright infringement claim.

• Final Decision

The Fourth Circuit upheld the District Court’s finding that iParadigms’ archiving of students’ work for the purposes of plagiarism detection was fair use, reasoning that it was transformative, and although used for commercial purposes, it did not harm the market value of the works. Thus, the Court affirmed the District Court’s summary judgement in favour of iParadigms as to the plaintiffs’ copyright infringement claim.

V. Conclusion

While fair dealing is a necessary doctrine, not only in copyright law but also in strengthening the protection given to the citizens under Art. 19 of the Constitution, the scope of the law is very limited and confined as compared to US fair dealing laws or even in comparison with the other copyright laws of countries around the world. Plagiarism around the world and in India severely retards the growth of creativity in the world.

After several considerations and cases that arise about plagiarism in India, the University Grants Commission provides guidelines to be followed by universities so as to check for plagiarism in academic activities. Plagiarism has been considered as an academic sin by scholars and universities all around the world.

It’s truly unfortunate and lowers our current educational standard by a lot. The Government of India has been working on stricter laws to prevent plagiarism in academics. The need of the hour as of right now is to encourage more creators and inventors so that their work is suitably protected by legal means and through strict laws.

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References

• The Copyright Act, No. 14 of 1957, Acts of Parliament, 1957, India.
• Robert A. Paul, V. v. Iparidigms, LLC: 562 F.3D 630 (4^th Cir. 2009), DePaul Journal of Art, Technology & Intellectual Property Law, 2009
• Sharona Hakimi, V. v. iParadigms, LLC: To Students’ Dismay, Plagiarism Detection Website Protected by “Fair Use”, Harvard Digest Paper, 2009
• Anubhav Pandey, Laws relating to Plagiarism in India, iPleaders Blog Paper, 2017
• DanThu Thi Phan, Will Fair Use Function on the Internet?, Columbia Law Review, 1998
• Vaibhavi Pandey, Fair Dealing in Copyrights: Is the Indian Law competent enough to meet the current challenges?, Mondaq Paper, 2014
• Kartik Chawla, Authors’ Guild v. Google – A Fair Use victory, and a chance for introspection, SpicyIP Paper, 2015
• Devanshi Goyal, Copyright Protection in the Cyberspace – A Comparative Study of USA and India, Northeastern University, 2016
• Ben Depoorter and Francesco Parisi, Fair Use and Copyright Protection: A Price Theory Explanation, Center for Advanced Studies in Law and Economics, Ghent University (Belgium)
• Shlisha Devadiga and Shweta Choudhary, Copyright Act, 1957, Presentation, CMR School of Legal Studies, 2018
• Vijay Pal Dalmia, India: Copyright Law in India – Everything you Must Know, Mondaq papers, 2017
• Atul Satwa Jaybhaye, Cyber Law and IPR issues: The Indian Perspective, Bharati Law Review, 2016
• Nehaluddin Ahmad, Copyright Protection in Cyberspace: A critical study with reference to electronic copyright management systems, Communications of the IBIMA, Volume 7, 2009
• Indu Sharma and Afshar Alam, Privacy and Freedom Issues in Cyberspace with Reference to Cyber Law, International Journal of Computer Applications, 2016
• Pankaj Kakde, Right to Privacy and its Infringement in Cyberspace, S.P College of Law
• Tabrez Ahmad, Copyright Infringement in Cyberspace and Network Security – A Threat to E-Commerce, KIIT Law School
• Ravindra Sharma, Copyright under Indian Cyber Law, Symbiosis Center for Information Technology, 2009
• Karnika Seth, Protecting copyright in the cyberspace, 2013
• Ministry of Electronics and Information Technology, FAQs on IPR and Copyright, Government of India, 2015

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[1] §57, The Copyright Act, No. 14 of 1957, Acts of Parliament, 1957, India.

[2] §63, The Copyright Act, No. 14 of 1957, Acts of Parliament, 1957, India.

[3] §52, The Copyright Act, No. 14 of 1957, Acts of Parliament, 1957, India.

[4] Independent News Services Pvt Ltd v. Yashraj Films Pvt Ltd & Super Cassettes Ltd 2013 (53) PTC 586 (Del)

[5] A&M Records Inc. v. Napster Inc. 239 F.3d 1004

[6] A.V. v. iParadigms LLC, 562 F.3d 630 (4^th Cir. Apr. 16, 2009)

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