Credit, compensation and control: different ways to reward authors (Rebecca Tushnet)

One of the things copyright professors tell their classes is that copyright infringement isn’t plagiarism and that the common confusion of the two things is a mistake. This is true in some important senses – I could plagiarize John Stuart Mill but not infringe his copyrights; I could infringe Bruce Springsteen’s copyrights without doing anything to take credit for Born in the U.S.A. But I think copyright professionals may have been too hasty to discount the persistent connection laypeople make between infringement and plagiarism in ordinary cases of verbatim or very close copying.

Plagiarism is the wrong of getting credit for work one didn’t do; copyright infringement is the wrong of copying expression without paying the customary price. Both seem to be types of “stealing,” though their boundaries are hotly contested, since in both cases there are no physical objects that can be pocketed and spirited away.  

Sometimes, however, payment for use of copyrighted works can be given in credit. And credit, of course, is the thing that averts charges of plagiarism. In copyright, proper attribution shows up in proposals to immunize good-faith uses of orphan works, writing students’ concepts of copyright and fair use, artists’ concepts of copyright and fair use (see Chapter 2), other countries’ fair dealing doctrines, and basically everywhere people are trying to figure out when it’s legitimate – when it’s fair – to use other people’s creations. Control, compensation, and credit are sometimes substitutes and sometimes mutually reinforcing. Credit can sometimes be implicit, as when it’s obvious due to culturally shared knowledge that a person didn’t compose the movie dialogue he’s quoting, like “Use the Force, Luke!” But that does lead to occasional problems when the knowledge isn’t shared.

Though our jurisprudence of fair use and our rules governing exceptions could definitely use attribution as a way to address authors’ interests without giving copyright owners total control over all uses, plagiarism and infringement are still different. Idea plagiarism exists, at least in some fields, at least according to some people. But taking ideas is never copyright infringement, and it would be a terrible idea to let that type of plagiarism cross over into copyright. So when I say that we should acknowledge the close relationship between plagiarism and copyright infringement, especially when considering fair use, I don’t mean that they’re identical. But their areas of overlap are important when we’re considering academic and artistic copying, reference, and quoting practices.

Comments

[Bruce Boyden]

Sometimes, however, payment for use of copyrighted works can be given in credit. Interesting; you could imagine this as something that might apply in non-commercial derivative-work-type cases; as long as credit is given to the source material there would be no cause of action. There may still be cases where that wouldn't be enough, but it seems worth exploring. Dividing DWs from mere reproduction would be a big initial hurdle.