Friday, 10 October 2014

A BRIEF ON PLAGIARISM AND COPYRIGHT INFRINGEMENT

Plagiarism has been said to involve the use of another’s work without attribution, as if it were one’s own original work. A more detailed definition has been given as, ‘the deliberate or reckless representation of another’s words, thoughts or ideas as one’s own without attribution in connection with submission of academic work, whether graded or otherwise.’ What is key in both definitions is the use of another’s work and the lack of attribution. Plagiarism appears to raise an ethical issue as opposed to a legal one with educational institutions being so averse to it that it has resulted in harsh disciplinary measures being taken against those found to have engaged in it. Academic institutions in dealing with this have not spared even professors. For instance, Marks Chabedi, a professor, plagiarized Kimberly Lanegran’s work and submitted it as his own work. Upon discovery, he was fired from his professorship and his Ph.D. was revoked. This is just one example of the adverse impact plagiarism can have on a person’s reputation. Unfortunately it has become the norm rather than the exception. Noting that plagiarism involves the use of another’s work, it is important to distinguish it from copyright infringement. This is because copyright is the legal term used to describe the right that creators have over their literary and artistic works which include books, music, paintings among others. The Kenya Copyright Act provides for instances where copyright infringement is said to arise. It is important to note that ‘a copyright shall be infringed by a person who, without the licence of the owner of the copyright- (a) Does, or causes to be done, an act the doing of which is controlled by the copyright; or (b) Imports, or causes to be imported, otherwise than for his own private or domestic use, an article which he knows to be an infringing copy.’ When it comes to copyright infringement, since it is a right that is protected under statute, a copyright holder can sue for its breach. An example of this was in the Kenyan case of JOHN BONIFACE MAINA v SAFARICOM LIMITED [2013] eKLR in which the Court found that the plaintiff had copyright to his recording which the defendant was offering to the public for a profit. It therefore granted him an ANTON PILLER ORDERS to ensure that his statutory rights of copyright were salvaged at that point of trial since it must preserve vital evidence necessary during trial. In view of the above, we see that the type of works that are capable of being plagiarized are also capable of being protected by copyright and hence can be infringed. Despite this similarity some few differences may be noted between the two. Firstly, for there to be copyright infringement the plaintiff must illustrate that their work is protected by copyright. This requirement does not attach to plagiarism. Secondly, in respect of copyright, if a person has permission to use the work then he cannot be liable for copyright infringement. With plagiarism, the only consideration is whether or not there is an acknowledgement of the author. Therefore, a person may have permission to use another’s work but if they do not acknowledge the author are present it as their own idea then one is liable for plagiarism. Thirdly, with copyright infringement a person has recourse to legal remedies but this is not the case with plagiarism. Lastly, it has been said that whereas copyright infringement is a construct of the law, plagiarism is a construct of ethics. Feel free to contact us at intellectualpropertyeastafrica@gmail.com for more information or guidance on Copyright and other forms of intellectual property. FOR: INTELLECTUAL PROPERTY EAST AFRICA LLP

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