Plagiarism or copyright infringement: the difference and the overlap

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Tourism Minister Lindiwe Sisulu has come under fire after the publication on January 7, 2022 of her opinion piece entitled “Hi Mzansi, have we seen justice” in which she criticized, among other things, South African justice. She was accused of plagiarism as it was claimed that much of her opinion piece incorporated parts of a speech given by former UK Attorney General Dominic Grieve in 2013. Given the popularity of this topic on social media, it is important to understand what exactly plagiarism entails and how plagiarism differs from and in some cases overlaps with copyright infringement.
Image source: © Dusit Panyakhom – 123RF.com

Plagiarism is the misrepresentation/appropriation of someone else’s words and thoughts without giving credit to the original author and ultimately passing them off as your own. Whereas copyright infringement is the unauthorized use or reproduction of copyrighted material without the permission of the legitimate copyright owner and thereby infringing certain exclusive rights granted to the copyright owner author. Plagiarism is a violation of intellectual creation but is not illegal (but is obviously considered a serious ethical violation) whereas copyright infringement is illegal under the Copyright Act.

Plagiarism and copyright infringement can occur at the same time or by the same act. It is important, however, that copyright can only subsist in works to the extent that they are reduced to material form and cannot subsist in ideas that are not reduced or expressed in material form (this includes performance of a work). The test for determining whether copyright infringement has occurred is qualitative rather than quantitative. This means that even if a small but essential part of the work is copied, it may still constitute copyright infringement.

Another aspect to consider is the territorial nature of intellectual property and the application of the Berne Convention for the Protection of Literary and Artistic Works (1886) – in particular the way in which this convention grants contracting states national treatment in the protection of works subject to copyright protection. The Berne Convention provides for the protection of works originating in one of the contracting countries and ultimately allowing copyright to subsist in any other country which is a contracting state. This means that if an original work was created in the UK, it will also be copyrighted in South Africa, as both of these territories are members of the Berne Convention.

Understanding the differences between plagiarism and copyright infringement is paramount to the defenses and remedies available to enforce rights against infringers.

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