Plagiarism is a term used loosely to refer to acts that involve a degree of copying without appropriately crediting the original creator. Essentially the act consists of two elements: the use of another’s work (which, depending on the kind of work and the way in which it is used, may or may not be problematic); and the passing off of that work as one’s own.
As plagiarism often entails some kind of infringement of the intellectual property rights of the creator of a work, certain legal remedies will be available. In the context of literary works, the intellectual property rights of the creator of a work are protected by copyright; so plagiarism will, in most cases, involve an infringement of copyright. Of course, the qualification ‘most cases’ means this isn’t always the case.
From the dictionary definition of plagiarism given above, it’s clear that it is possible to plagiarise an idea. But it is a maxim in copyright law that there is no copyright in ideas, no matter how unique or original. Accordingly, an idea enjoys no protection while it exists in the mind of an author, and there are no legal consequences if someone other than the author used that idea and claimed it as his/her own.
Once an idea is reduced to a material form (whether it is written or recorded), it is this material form that attracts copyright. And it is here that acts of plagiarism will more often than not also constitute an infringement of copyright.
Referring then to the first element of plagiarism, the use of another’s work: a problem may arise where the author of a work does not own the rights required to use the work.
Although the general rule is that the creator or author of a work owns copyright, for every rule set out in the Copyright Act 98 of 1978 (the Act), there is an exception. For literary works, a crucial exception is contained in Section 21(b) of the Act. The section states that in the case of any literary work created in the course of employment with a newspaper, magazine or similar periodical for the purpose of publication, the proprietor of the newspaper or magazine will be the owner of copyright.
But let’s look at the harder example. What if the copyright owner (in this example, your employer) used your work without recognising or crediting your authorship? This brings us to the second aspect of plagiarism, presenting someone else’s work as your own.
Section 20 of the Act protects what is known as an author’s “moral rights”. For our purposes, the most important of these moral rights is the right of paternity, which recognises an author’s rights to claim authorship of a work.
Importantly, moral rights exist independently of any copyright in a work. Moral rights are personal rights (like the right to privacy or dignity) and not property rights. For this reason, even a full assignment of copyright in a work will not affect the transfer of an author’s moral rights. Because moral rights are personal rights, they cannot be transferred.
Where someone other than the author of a work wrongly claims authorship then such a claim would impinge on the author’s right of paternity. In terms of Section 20, an infringement of an author’s moral rights is treated as an infringement of copyright. Therefore, even in situations where the author is no longer the owner of copyright in a work, a remedy is available if that work is plagiarised.
Rosin Wright Rosengarten (RWR) is a firm specialising in entertainment and media law based in Johannesburg.