Plagiarism and the law

‘Plagiarism is not a legal concept in the strict sense. It is not defined by any statute or specifically regulated by the common law. Industry-specific codes or policy do not amount to law, regardless of the consequences attached thereto. However, this does not mean that the law is not concerned with plagiarism,’ says Stellenbosch University Cobus Jooste of the Department of Mercantile Law, in a comprehensive analysis on the Anton Mostert Chair of Intellectual Property Law blog. He argues that it is not surprising that the ‘hodgepodge of attempts to foist plagiarism on the law have failed to deliver judicial guidance on the nature or scope of plagiarism’. Jooste says that plagiarism as a form of misrepresentation in civil law is applicable to all works, whether or not it is protected by copyright law, and may amount to a criminal offence in certain cases. A ‘suitably correct and concise meaning of plagiarise’ is the act of copying, using or presenting ideas, words or work of another as if they are your own. In law, plagiarism as a form of misrepresentation includes self-plagiarism. In order to avoid plagiarism, he says, care must be taken to prevent any misrepresentation. ‘Those who endeavour to paraphrase, count the number of words copied or seek to define ideas as common knowledge in order to avoid citation will usually fall foul of the plagiarism definition,’ he adds. ‘Plagiarism is not primarily an ethical question but a legal question. The fact that the law does not define plagiarism does not mean that it is not subject to judicial scrutiny. Lamentable as our collection of case law on plagiarism may be, this should not create the false impression that the law is not concerned with plagiarism or incapable of addressing it in earnest.’