Regulation of Plagiarism and its Interplay with Intellectual Property Law
Written by Shivansh Soni
Research Associate at Law & Order (Sept-Oct 2020)
Maharashtra National Law University, Nagpur
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Research and writing form the basis of what any scholar/academician are adjudged upon and in the recent years owing to the ever-increased usage of internet and easy access to the same, it invites a plethora of content to be uploaded daily through some or the other means (journals /blogs /books, etc). The inherent issues which remain unaddressed is the publication of such content without due acknowledgements to the original author which in turn leads to infringement of the IPR.
What is Plagiarism?
Plagiarism is defined as the “practice of taking someone else’s idea, work, writing and claiming it to be one’s own”. This amounts to a literary theft which is though not primarily governed under any Indian law directly but rather is considered to be a morally unethical commission. However, in the Indian Copyright Act, 1957 when a substantial portion of the copyrighted work is copied without any permission from the owner, it may amount to criminal proceedings with allegations of Copyright Infringement. This Act inter alia protects the duplication of work either in parts or wholly.
In furtherance of this, to maintain the integrity of the academic writing, plagiarism detection softwares like ‘Turnitin’, ‘Plagiarism Checker”are used commonly by universities, colleges and publishers. These softwares primarily run through the existing content and check the percentage of similarity and generate a report of the same. The easy availability of such softwares to check plagiarism, facilitates the person with the scope of simply paraphrasing the plagiarised content without acknowledging the author to escape from the software and claims of infringements. Being one of the most profound and common academic malpractices, plagiarism is now regulated by the government through UGC which is the nodal authority.
Owing to the increased academic malpractice, UGC has laid down the University Grants Commission (Promotion of Integrity and Prevention of Plagiarism in Higher Education Institution) Rules, 2018 which allows the usage of plagiarism checking software to the academic institutions.
Therefore, it becomes imperative to contextualize the coherent laws governing this i.e. the Copyright Act, 1957.
Types of Plagiarism
Plagiarism could be used in a wider ambit which includes as defined above photocopying, self-stealing(whereby the author uses his own content and has rights to reproduce his own works) the Potluck Paper (whereby the secondary author uses different sources and compiles them in one article after having only a few sentences changed) and the Ghost Writer (whereby all of the content is copied without any acknowledgement to the author and accrediting to their own names).
This article attempts to inform about this growing issue of plagiarism and how copyright law views this act as. It also entrenches upon the issue of whether the detection of plagiarism can be considered within the ambit of Fair Dealing Clause as under the Copyright Act.
Copyright Act, 1957
This Act talks about an ample of aspects governing the right of the copyright holder, including the concept of fair dealing, infringement of copyright, as well as the punishment for infringement in the form of imprisonment and fines. As aforementioned, plagiarism is a morally unethical issue against which no prima facie infringement could be instituted, however Section 57 of the Copyright Act ascribes upon the authors exclusive rights to claim authorship. Furthermore, Section 63 of the Act considers copyright infringement as a criminal offence. In furtherance of this, the case of Roche v. Cipla is imperative to be discussed whereby the Delhi High Court plagiarised 30 paras from a Law Review article, upon further deliberation of the issue the court apologised to the original authors for having infringed their copyright.
Law of Fair Use: An Exception
Section 52(a) of the Act, provides for exceptions to such claims of infringement in terms of Fair Dealings which refers to the use of the said content (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.
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 could possibly amount to an infringement of copyright.
This exception is premised on the idea to prevent creativity from getting thwarted which is the primary reason IPRs were bought in the first place. The doctrine of fair dealing is also enshrined in Article 13 of the TRIPS Agreement and the Berne Convention on Copyright. Most territorial copyright legislations have inculcated this doctrine in their respective laws, however, differences subsist in the way these doctrines are adopted. The next section therefore, looks at the jurisdictions of USA and UK vis-a-vis India to have a clear understanding as to the laws with regards to the issue of plagiarism.
Jurisdictional Analysis of Plagiarism
Due to the lack of empirical evidence or case laws in India, this article entrenches upon other jurisdictions for the legal analysis of these issues.
1. United States of America- In the case of A.V. v. iParadigms, LLC, the district court of Virginia, hearing the matter brought by 4 students of High School against the forced submission of assignments in electronic form, and the allegation which was made were that the company(Turnitin) was making profits out of the submission made by the students. The court in this case held that the fair use provisions mentioned in the Copyright Act shall strictly be adhered to and the company doesn’t use the papers by the student for any academic purpose but only for the comparison, which facilitates the working of the software. This case dealt with the aspect of transformative usage which comes within the fair use doctrine and it was penned in this case that the usage of plagiarism software is not derogatory to someone’s rights and could possibly be categorized into “highly transformative” usage. In the opinion of the author, this judgement flawed in rendering usage of software for detection under Transformative Usage, without actually embarking upon the Academic integrity of Content.
2. United Kingdom- The government and the agencies of the UK have strictly been looking to extenuate the increasing issues of plagiarism and other malpractices. Analogous to UGC, the UK has a Quality Assurance Agency for Higher Education, to curb such instances of malpractice and academic standards. The Council for Higher Education in the UK has approved the usage of Plagiarism detection software to be used in Academic Institutions. This Act shall presumably deter the lack of quality in research and writing.
Analogous to the stance taken by the UK, UGC in India also introduced regulations for the prevention of plagiarism while discussing the “Promotion of Academic Integrity”. As aforementioned it laid down the “Prevention of Plagiarism in Higher Educational Institutions (HEI)” Regulations in 2018.
The doctrine of fair dealing has a vital role to play in copyright law, yet, the scope of the law in this arena is very limited and confined as compared to US fair dealing laws. Plagiarism around the world and in India severely thwarts the wheel of growth of creativity. After having an overlook of the judicial pronouncement in India, there arises a dire need to regulate and enforce strict mechanisms to ensure quality in academic writing.
The University Grants Commission, statutory body under the Ministry of Education which maintains and coordinates standard of education system in India, has in this respect issued guidelines to be followed by universities so as to check for plagiarism in academic activities, copyright infringement and the functioning of plagiarism detection software which the article attempts to highlight.
Plagiarism detection software, as discussed in the A.V. v. iParadigms, is absolved from any copyright claim and is considered to be under fair usage. Keeping the above arguments in mind, the same could partially be applied in the Indian Laws under Section 52 of the Copyright Act, 1957. Its limited application should be able to uphold academic integrity and the usage of plagiarism detection software shall not be infringing upon copyright.
 RFA(OS) Nos. 92, 103 of 2012.  Part II — Standards concerning the availability, scope and use of Intellectual Property Rights, World Trade Organisation, https://www.wto.org/english/docs_e/legal_e/27-trips_04_e.htm(Last Visited 28/-9/2020); Berne Convention for the Protection of Literary and Artistic Works, World intellectual Property Rights Organisation, https://www.wipo.int/treaties/en/ip/berne/ (Last Visited 28/09/2020).  Civil Action No. 07-0293  Plagiarism in Higher Education- Custom essay writing services: An Exploration and next steps for the UK Higher Education Sector, https://www.qaa.ac.uk/docs/qaa/quality-code/plagiarism-in-higher-education-2016.pdf ? sfvrsn=308cfe81_4 (Last Visited 28/09/2020).  Clause 5(b), Intellectual Property Rights and Copyrights- Plagiarism in higher Education, QAA, https://www.qa a.ac.uk/docs/qaa/quality-code/plagiarism-in-higher-educasfvrsntion 2016.pdf?=308cfe81_4 (Last Visited 31/07/2020).  Notified on 23rd July, 2018 under University Grants Commission Act, 1956, https://www.ugc.ac.in/pdfnews/7 771545_academic-integrity-Regulation2018.pdf (Last Visited 28/09/2020).  Supra 3. Bibliography
Article and Reports
University Grants Commission (Promotion of Integrity and Prevention of Plagiarism in Higher Education Institution), 2018.
Intellectual Property Rights and Copyrights- Plagiarism in higher Education, QAA, https://www.qaa.ac.uk/docs/qaa/quality-code/plagiarism-in-highereducasfvrsntion2016.pdf?=308cfe81_4 (Last visited 31/07/2020).
Plagiarism Detection: Issues of Copyright Infringement, Raghav Parthasarthy, CEERA, http://nlspub.ac.in/plagiarism-detection-issues-of-copyright-infringeme nt/. (Last visited 31/07/2020).
A.V. v. iParadigms, LLC, Civil Action No. 7-0293, US District Court.
Roche v. Cipla RFA(OS) Nos. 92, 103 of 2012