Anomalies in Copyright Law

• Published date: 01 November 2006
• DOI: http://doi.org/10.1111/j.1422-2213.2006.00306.x
• Date: 01 November 2006
• Author: Anirban Mazumder

Anomalies in Copyright Law

Anirban Mazumder

National University of Juridical Sciences

The word copyright is a misnomer. The law of copyright is based on the encouragement of

motive. Plagiarism is not necessarily copyright infringement and copyright infringement is

not necessarily plagiarism. Copyright law is concerned, in essence, with the negative right of

preventing the copying of physical material. Copyright is not a monopoly, unlike patent and

registered design. Thus, if it can be shown that two precisely similar works were in fact

produced wholly independently of one another, there can be no infringement of copyright by

one or the other. Substantial similarity leading to copyright infringement is a grey area in

copyright law. As per copyright law principles, making a digital copy itself is copyright

infringement, no matter what amount of work is accessible to users. If a compilation work

satisfies the originality criteria, that is ‘creativity’, then it will be protected. There is no

copyright in facts per se, but original expression of factual compilation can have copyright

protection.

Keywords plagiarism; copyright infringement; originality; database

From Gutenberg’s printing press to online music in Napster, copyright law has

travelled through different stages of development. This journey has witnessed many

changes that are taking the subject forward. Change is the only constant in all

disciplines. Change is required in a discipline to keep it contemporary. It will be

interesting to examine the merit of some of the changes to explore their contribution

in keeping the discipline on track. This article attempts to examine four anomalies

that have emerged in copyright law in the recent past: plagiarism; the idea–expres-

sion dichotomy; digitalization; and originality. These anomalies expose the tension

created within the discipline.

Anomaly 1: Copyright Infringement and Plagiarism

Kaavya Viswanathan’s debut novel How Opal Mehta Got Kissed, Got Wild, and Got

aLifehas recently hit headlines as The Harvard Crimson (Zahu, 2006), a newspaper

published by students at Harvard University, reported that she plagiarized in her

novel, which fetched her a contract for $500,000 (Paris, 2006). The report suggests

that Ms Viswanathan had lifted passages from Megan F. McCafferty’s two books

Sloppy Firsts and Second Helpings.

The Harvard sophomore, whose novel has been bought by Steven Spielberg’s

Dream Works, conceded the allegation and apologized by commenting that

phrasing similarities were unintentional and unconscious. Her publisher Little

Brown assured everyone that inappropriate similarities would be removed in future

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printings of the novel. Consequently, the novel has been withdrawn from the

market.

The 19-year-old, whose novel was heading for the New York Times’ national

bestseller list, described herself as a huge fan of McCafferty and confessed that she

‘‘internalized’’ (Paris, 2006) McCafferty’s words without realizing it.

So what is the controversy all about? Is it a clear case of plagiarism or an

expression of internalized thoughts? To answer this, one needs to understand what

constitutes plagiarism.

Plagiarism is a type of academic dishonesty. It consists of the unacknowledged

use of another person’s idea, information, language and writing. Is it synonymous

with copyright infringement? Laurie Stearns observed:

People commonly think of plagiarism as being against the law. But with

respect to plagiarism, the law and literary ethics intersect only

imperfectly. Plagiarism is not a legal term, and though an instance of

plagiarism might seem to be the quintessential act of wrongful copying,

it does not necessarily constitutes a violation of copyright law (Stearns,

1999, p. 6).

In Japanese language, there is no equivalent term for plagiarism. The word

‘‘nusumu’’ stands for taking someone else’s property. In Japanese culture, precise

imitation of the master is a must for folk music, dance, painting and martial art.

This is endorsed as the proper way to learn. It requires years of practice before one

learns the skill of stealing the qualities and attains gei, that is accomplishment in

performance, and becomes a creative artist or kinochita (Dryden, 1999). Shall we

treat Japanese culture as contaminated by plagiarism?

According to Diana Hacker, three acts constitute plagiarism: (1) failing to cite

quotations and borrowed ideas; (2) failing to enclose borrowed language in

quotation marks; (3) failing to put summaries and paraphrases in your own words.

1

Plagiarism can lead to failing grades, suspension, expulsion, etc.; degrees may be

revoked, jobs may be lost and careers may be ruined because of plagiarism.

Let us see what has been discovered from Ms Viswanathan’s novel. The

Harvard Crimson captured many similarities between McCafferty’s novel and

Viswanathan’s novel. Let us take one of them for consideration.

From page 6 of McCafferty’s first novel: ‘‘Sabrina was the brainy Angel. Yet

another example of how every girl had to be one or the other: Pretty or smart. Guess

which one I got. You’ll see where it’s gotten me’’. From page 39 of Viswanathan’s

novel:

Moneypenny was the brainy female character. Yet another example of

how every girl had to be one or the other: smart or pretty. I had long

resigned myself to category one, and as long as it got me to Harvard, I

was happy. Except, it hadn’t gotten me to Harvard. Clearly, it was time

to switch to category two (Zahu, 2006).

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Anomalies in Copyright Law Anirban Mazumder