Pravni Zapisi (Jan 2015)
Prohibition of plagiarism and the right to quotation in science
Abstract
I. In section A of its first part the article deals with the concept of plagiarism and prohibition of plagiarism, with a specific review of plagiarism in science. Since in relation to scientific work the objection of plagiarism often comes down to the objection of non-citation, i.e. not referencing the work from which parts are taken over and their authors, section B deals with the right to a citation. A. Every definition of plagiarism supposes that the plagiarist, by his/her action, does not respect the factually and legally unbreakable connection between the author and his/her work. Since by doing that the plagiarist denies the author of being the creator of his/her work, then - regardless of how plagiarism is defined - the law of personality provides the widest possibility of protection, because any denial that someone has created something presents a breach of his/her right to an identity. - The law of science provides a narrower possibility of protection, since only authors of scientific works are protected from plagiarism. However, that protection is wider than the one offered by copyright law, because every plagiarism in terms of copyright law is at the same time a plagiarism in terms of the law of science, while the reverse is not true: there are scientific law plagiarisms which are not plagiarisms from the viewpoint of copyright law. Everything that is forbidden as plagiarism by copyright law is not permitted by the law of science as well, but not everything forbidden by the law of science is at the same time relevant in terms of copyright law. For instance, anyone who has provided a relevant contribution to the emergence of the work (collected data, set the main concept, systematics, argumentation, theory etc.) even if his/her work does not represent a copyrighted work is protected from plagiarism by the rules of law of science, while copyright law does not at all protect the idea itself, but only the form. Differences in the law of science and copyright law regimes originate from their differing objectives of protection. - In the copyright law domain plagiarism is usually understood as conscious attribution to oneself of someone else's copyrighted work. The writer of this discussion proposes that plagiarism should be defined more broadly in two directions: as intentional or unintentional attribution of someone else's copyrighted work to him/herself or a third person. The definition of plagiarism is useful for following reasons, even though it is not necessary, also in a country like Serbia whose copyright law does not utilise the term: for the economy of expression - the possibility to use it as an abbreviated designation for a number of situations, instead of them being described; for reasons of systematisation - the possibility to delineate these situations from other, related situations with the same or different legal consequences; for reasons of increasing the security of legal work - because the concept can be defined in the form of a classical definition (per genus proximum et differentia specifica) and disjunction (usurpation or attribution to third person) and such definitions reduce the prospects of a misunderstanding which follows from the present usage of the term without a definition. The suggested definition presents plagiarism as a specific composition of seven elements: 1. illicit, 2. intentional or negligent, 3. identical or significantly corresponding transfer 4. of someone else's already existing copyrighted work, in whole or partially, and 5. its publication, 6. without determination of the work and/or its author, 7. as one's own work (publication under one's own name or pseudonym) or a work of a third person (publication under full name or pseudonym of the third person or anonymously). Only when all elements are fulfilled, but also always when they are all fulfilled, there is a plagiarism and the author is also entitled to damages, as a form of copyright law protection for which most conditions are demanded. The article analyses every element while the elements used to widen the definition of plagiarism are particularly explained: from only intentional action to unintentional as well; from only usurpation to attribution to a third person as well. - B. According to Serbian copyright law a permitted citation represents the transfer into one's copyrighted work short sections of someone else's already published copyrighted work, without changes, with a clear designation that they were taken over, and with an identification of the original work and its author, which are necessary for illustration, confirmation or reference. Everyone has a legal right to such a citation without permission from the author and without royalties. And nobody has the legal right to a citation missing a single of the listed conditions without permission of the author or royalties. Plagiarism exists when, even if all other conditions for citation are fulfilled, there is no listing of the work from which the citation comes from and/or its author. The author of this discussion analyses all seven elements of a permitted citation and particular attention is paid to the legal condition of necessity of citation and necessity of the volume of citation for the purpose of illustration, confirmation or reference. The author also determines the legal nature of the right to a citation. - II. In the second part of the article it is demonstrated by way of analysis of a university text book which contains parts of another text book that such a transfer represents plagiarism consisting in unfulfilment of six out of seven legal conditions for the right to citation and in fulfilment of all seven conditions for prohibition of plagiarism.
