[This post was revised to include Part II which was first published at 'IndianCopyright'.]

Part I:

Some time ago, Terry Hart wrote a post on Copyhype which leaned towards characterising copyright infringement as theft, and Techdirt (via @gkjohn) subsequently posted a write-up on why copyright infringement is not synonymous with theft. There exists case law on the subject; unfortunately, case law which is susceptible to interpretation, and as much as one might wish, the issue is not entirely one which confines itself to legal interpretation but is one which deals with how one perceives copyright infringement. That is to say, does one consider copyright infringement to be a legal issue with moral overtones?

If one were to think of copyright infringement as a moral wrong, one would be far more likely to think of infringement as theft — in the popular sense of the word — with all of its attendant moral implications. However, if one were to think of copyright infringement as merely the violation of a legal right (which is, incidentally, how I perceive copyright infringement), one would be far less likely to consider copyright infringement along the same lines as theft. However, that being said, the question is more nuanced than “Is Copyright Infringement Theft?” since copyright infringement often occurs concurrently with plagiarism. As fluid as the term ‘plagiarism‘ may be, there is little doubt that plagiarism involves copying another person’s work or ideas without attributing that person. There may, of course, be times when plagiarism is unintentional and inadvertent. In such cases, assuming attribution is accorded to the source as soon as a crediting error is noticed, plagiarism would generally not be considered to be an issue.

Leaving aside instances of inadvertent plagiarism, firstly, if the person committing plagiarism were copying another person’s work in a manner which would violate the rights of the owner of the work as defined by copyright statutes, not only would he be committing copyright infringement but he would also be violating the original author’s moral rights. And, secondly, assuming that he copied the original author’s work in a manner which did not make the copied version fall within the scope of the violation of copyright or of the author’s moral rights under copyright law (such as by paraphrasing the author’s idea without attribution and with completely new expressions), he would still be committing plagiarism although he would not be guilty of copyright infringement or of violating the author’s moral right as defined by copyright law.

In the first case, it is relatively clear that both the owner’s and the author’s rights would be violated. However, as far as the owner’s rights are concerned, the scope of copyright infringement has itself become so wide today that it is virtually impossible to make any form of derivative work from a copyrighted work without committing copyright infringement. Considering that copyright is, in itself, an entirely legal right, it could, consequently, be argued that it is amoral. Theft, on the other hand, has distinctly moral and religious overtones. As such, the mere violation of copyright may not be comparable to theft because of having an entirely different genesis.

There is, however, still the issue of plagiarism to be dealt with in both the first and second cases. Plagiarism, which may be roughly equated with the violation of an author’s moral right to attribution, is generally considered to have moral overtones, and need not necessarily occur in conjunction with copyright infringement.

It is far easier to make comparisons between theft and plagiarism than it is to do so between theft and copyright infringement because both theft and plagiarism are — to a certain set of persons — distinctly moral issues. As G. Thomas Couser, explained in an open letter to student plagiarists: “The opposite of academic honesty is not actually academic dishonesty; it’s dishonesty that is decidedly unacademic. …. The problem is not so much rule breaking as point missing.” However, there is, of course, also a set of persons to whom plagiarism is not a moral issue.

Further, attempting to bind plagiarism to ethical, philosophical or historical anchors is not always easy. For example, prior to the emergence of modern copyright, much of our intellectual work product was communal and derivative — and there is no evidence that plagiarism was ever an overriding concern. There are those who draw parallels between the manner of creating works in say, the medieval times, and in modern times: the Internet has once again allowed us to create much of our intellectual work product on a communal basis, this time on a international scale, with many of our ideas of authorship supposedly being eroded. And, if the importance accorded to authorship were to be diminished, the likelihood of plagiarism being considered a wrong would also be diminished; without a clear author, who would one attribute?

The primary problem with this argument is that whether or not an author is easily identifiable, a person using an existing work would still be able to source it. For example, a Wikipedia article, the definition of a communal work, could always be attributed with a link to it even if its authors were numerous or difficult to identify. Copying from a work of joint authorship does not negate the fact that such copying is plagiarism if it is devoid of attribution. In addition to this, as Jonathan H. Adler has pointed out, “The mash-up culture is not a culture of plagiarism.  Those who copy music, lift riffs, or appropriate images don’t usually claim authorship of the original source material or claim it as their own.  They use this material in works of their own, while freely acknowledging its provenance.  …. Even in the Internet Age, we recognize the difference between incorporating the work of another and passing it off as one’s own.”

The appropriation of another’s work and passing it off as one’s own would seem to be a moral issue. Whether or not one considers it to be synonymous with theft is, however, ultimately, a value judgment. Given that such appropriation or plagiarism often takes place in conjunction with copyright infringement, it is difficult to separately consider issues of ownership and authorship, of the violation of a legal right and the violation of a moral right, and most importantly, in this case, to separately consider the issues of infringement and theft.

(This part was first published at LawMatters.in.)

Part II:

One question which arises with reference to the nature of copyright infringement is whether or not it is comparable to theft. While many rights holders describe infringement as being analogous to theft, using words such as ‘pirac’ and ‘pirates’ to describe copyright infringement and those who commit it, the position that ‘infringement is comparable to theft’ is open to strenuous debate, and even more so is the position that ‘infringement is comparable to piracy (with all its attendant insinuations)’.

In India, to have committed theft according to the letter of the law, one must have ‘intended to take dishonestly any movable property out of the possession of any person without that person’s consent, and have moved that property’. As such, if one were to consider the legal definition alone, it is clear that despite the fact that copyright is considered to be movable property, copyright infringement could not possibly be considered to be analogous to theft simply because infringement does not generally involve removing copyright from the ‘œpossession’ of the owner and moving it. For one thing, copyright, being an intangible, cannot be possessed. And for another, even if one were to enjoy the copyright of another person without his or her consent, one would not be ‘removing’ it from any supposed ‘possession’ of the owner.

Of course, there may be situations in which products which have an intellectual property component which are the subject of theft, but in such cases, as a general rule, it is not the violation of intellectual property rights which is of primary focus but the theft of the products themselves. For example, if a consignment of music CDs were stolen, one would generally have the owner of the CDs speak of theft and not of copyright infringement. In fact, at the point of time when the CDs were stolen, it could be argued that copyright had not been infringed, and that only a subsequent act of the perpetrator such as the sale of the CDs would cause the copyright in them to have been violated.

The underlying assertion, however, would remain unchanged: that ‘copyright infringement’ could not be equated with ‘theft’, in the legal sense of the word. The popular sense of the word could be considered to be a completely different story though. Theft, in everyday terms, assumes a much broader meaning which is fraught with moral and religious overtones. In the Christian tradition, for example, the Eighth Commandment clearly prohibits stealing.

This Commandment too would appear to contemplate stealing something which is tangible though, and not something which is merely a ‘right’ or, more accurately, a privilege granted by the state – a privilege which cannot be considered to have moral overtones particularly in light of the copyright’s history: leaving aside proto-copyright regimes which existed in parts of Europe, if one were to consider the origins of copyright in England, the first modern copyright statute arose not so much because of an ardent desire to protect authors but from the instinct for self-preservation which publishers had. The Company of Stationers had, by the time of the reign of Queen Anne, lost the privileges which were accorded to them in consequence of existant censorship laws in England, and it was to preserve their livelihoods that they pushed for the1709 Statute by having a hitherto virtually unheard of right – the author’s copyright – enacted into law.

While today, it may be possible to argue that the author’s copyright is all about authors, if one were to take oneself back in time to the 1700s (or, for that matter, even the 1970s), it would become apparent that the author’s copyright was little more than a support structure for a business model which supported publishers far more than it did authors. After all, an author’s exclusive right was of very little use to him (or her) as in pre-Internet times, there was no real way in which an author could publish and distribute his work unless he had independent means.

As such, as an economic and legal right, which is decidedly amoral, it is extremely difficult to argue that the infringement of copyright is comparable to theft. However, modern copyright statutes tend to include such rights as the right to attribution within their scope, and in fact, may include such rights in such a manner as to leave them irreversibly enmeshed with copyright.

Under the Indian Copyright Act, 1957, for example, Section 57 includes within its scope the right of an author to be attributed for his work. Although, in the Indian statute, the right is referred to as a ‘Special Right’, commentaries on Indian law often refer to the right as a moral right, as do some foreign statutes which incorporate the right to attribution as a moral right within their text. This right to attribution subsists in respect of a work protectable by copyright (arguably even after the expiry of the copyright in that work), and it subsists ‘independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright’. Thus, the right to attribution could be considered analogous to the right not to be plagiarised.

Despite the fact that the right to attribution is explicitly stated to be independent of copyright, and is impliedly considered to be a moral right, Section 63 of the Indian Copyright Act which deals with criminal offences fails to differentiate between the infringement of copyright (an economic right), and the violation of a Section 57 right (a moral right). It treats the two in exactly the same manner, and prescribes exactly the same punishment for both.

This sort of intermingling between moral and economic rights is not uncommon. Even if one were to turn to International laws such as the UDHR and the ICESCR, one would see that while they could be considered to be different, these treaties do speak of these disparate rights in the same breath. In fact, it is also pertinent to note that these treaties do not even seem to differentiate between different kinds of intellectual property which are created by intellectual labour. Article 27(2) of the UDHR merely states that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. And, along similar lines, Article 15(1)(c) of the ICESCR states that ‘the States Parties to the present Covenant recognize the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’.

Perhaps it is this trend of “simultaneous treatment” of economic and moral rights which has created much confusion, along with the fact that infringement may occur in conjunction with plagiarism. While it may well neigh be impossible to set up an unassailable argument of infringement not being analogous to theft, in the case of plagiarism, it is far easier to make comparisons with theft considering that both plagiarism and theft have strong moral overtones, and both of them involve attempting to appropriate something which belongs to another.

In the case of plagiarism, the work of an actual author is fraudulently misappropriated and passed off by the plagiarist as his own. In some cases, plagiarism may be inadvertent. However, in others, plagiarism is anything but inadvertent and is a deliberate attempt to do such things as, possibly, gain prestige if one an academic, or take a short cut to avoid actually having to do the research (and writing!) for a paper if one is a student. Although if one were to go back in time, many of our greatest works could be considered to be ‘communal’ in some cases or “derivative” in most others, the mere fact that the historical origins of modes of production would not obviate the damage which plagiarism is capable of doing today.

One’s words are no longer considered to be communal property even assuming that there was a time when that was the case. In the case of academic plagiarism by students, as G. Thomas Couser explains in a letter to plagiarists, ‘plagiarism entirely defeats the attempts of professors to educate students. It is a substitute for (and the very antithesis of) the intellectual work which professors ask students to do, and committing plagiarism suggests that students do not value an expensive education’.

Within an academic setting, it is not difficult to find persuasive moral arguments against plagiarism especially given that one’s standing in the community is dependent on one’s publications. Another convincing argument though, which applies in almost all settings, is that plagiarism involves a form of identity theft. In writing a work, authors typically ‘exude’ a part of themselves into their work. By appropriating the work of another, what a plagiarist in effect does is steal the voice of the actual author. Considering this, it would be difficult to justify plagiarism.

As such, considering the nature of plagiarism, it may be possible to treat plagiarism as theft despite the fact that copyright infringement is not. However, considering that plagiarism and copyright infringement often occur concurrently, it is sometimes extremely difficult to speak of them separately. Despite this difficulty, it is unlikely that it would be easy to justify lumping ‘plagiarism’ and ‘infringement’ under the umbrella term of ‘piracy’ as many are wont to do.

(This part was first published at ‘Indian Copyright‘.)