The press(ing) matter – plagiarism and copyright infringement

Posted on Feb 2, 2012

The press(ing) matter – plagiarism and copyright infringement

A journalist who cannot define plagiarism is nearly as useful as a bucket without a bottom. Similarly, while the nation is expected to rise in defence of the independence of the press (and rightly so), one might be excused for thinking that all members of the media are capable of independent thought.

Unfortunately, judging by recent commentary on the SA Press Code, the captains of our printed media understand as little about plagiarism as the ruling party does about intellectual property law.

While addressing a hearing of the Press Freedom Commission earlier this week, Barney Mthombothi, the editor of the Financial Mail, expressed an opinion about section 1.8 of the Code.

In the most succinct manner, the Code will impose a blanket prohibition on plagiarism by stating: “a journalist shall not plagiarise”.[1]

However, in successive and largely verbatim online articles the Times Live,[2] Pretoria News,[3] the Mail & Guardian Online,[4] News24,[5] Business Day[6] (in chronological order) and The Namibian,[7] reported that Mthombothi’s address called for further clarity and suggested “more depth and definition (sic) in what plagiarism meant”.[8]

According to Mthombothi plagiarism is “actually quite a serious and vexing topic”[9] which “did (sic) not happen often”.[10] Furthermore, this “very traumatic thing”[11] (plagiarism) is “usually a fireable offence”[12] which “obviously involves taking something that does not belong to him or her”.[13] Therefore, while his first reaction would be to report such a “criminal offence”[14] to the police,[15] according to Mthombothi plagiarism is nevertheless not the subject of statutory enforcement[16] because it “should be kept in the confines of the media”.[17] As a result, so the reports go, the Code should be dismissed because “statutory enforcement would make it no longer free or independent”.[18] One may only assume that by “it”[19] the reports refer to the media in general, despite the confusion in context.        

Finally, Mthombothi argued that journalistic plagiarism is detrimental to the credibility of the publication in question[20] and constitutes a breach of trust between the journalist and his/her editor,[21] who is usually only informed of plagiarism by the original author.[22] As a result, Mthombothi suggested that institutions of tertiary education should include plagiarism in the curriculum.[23]

Fortunately, some institutions consider plagiarism as something more than a “vexing topic”[24] and may therefore provide some, clearly overdue, guidance to the media.

Defining plagiarism

Locally, plagiarism is defined as the “use of the ideas, material and other intellectual property of others that are passed off as one’s own”,[25] and clearly covers a wider range of conduct than simple copying without citation.

Plagiarism may take a variety of forms, ranging from explicit copying to negligent manipulation of original text or work, and may be divided into three categories: the reproduction offences, the review offences and the quotation offences.[26]

The reproduction offences include the most obvious cases of verbatim (or lifted) text as well as the blended representation of copied text interspersed with original words, phrases, synonyms or omissions without giving due credit to the source.

The review offences include the most common forms of plagiarism: shallow paraphrasing and inspiration paraphrasing. Both instances of plagiarism involve the condensation of another’s work by reproducing the substance of the original text in abridged or amended form. The fact that the author has expended significant skill or effort to recapitulate the original work will make no difference.

Shallow paraphrasing occurs where the author indicates the source of information, text or ideas (usually with reference to the name of the first author) but then proceeds to reproduce portions of the original text verbatim or by replacing only selected key words or phrases.

Where the author manages to produce a digest, abstract or redrafted version of the original work in a new format, but fails to acknowledge the origin of the underlying idea, inspirational plagiarism is committed.

The quotation offences address all instances of negligent drafting or inadequate research where the author plagiarises despite the use of quotation marks or citations. The reproduction of original text in quotation marks will not survive the test for plagiarism if the quotation is not immediately followed by a citation of the first source. Therefore, reproducing a quotation from within an existing quotation would also constitute plagiarism where the first original author is not acknowledged. Similarly, where such a secondary quotation is incorrectly referenced or cited from a source that no longer exists, the attempted quotation is of no consequence and the author guilty of direct plagiarism from the second author’s work.

Dealing with plagiarism

Among academics the misappropriation of intellectual endeavour is considered the highest form of betrayal, and will always lead to disciplinary measures.

The ethical transgression that plagiarism (in whatever form) represents to scholars is considered inexcusable and a most effective form of career suicide. For academics and students alike, the maxim ignorantia iuris non excusat (ignorance of the law is no defence) applies to all cases of plagiarism while ignorare leges est lata culpa (ignorance of the law constitutes gross negligence) is usually the basis for dismissal, the forced surrender of a degree, loss of study credit or expulsion.

While the level of veracity that is demanded of scholars remains high, it is to be expected that a similar approach to plagiarism may be inferred from the journalistic integrity our media often professes and that each member of the press will be intimately familiar with the nature of plagiarism. Furthermore, if the press is indeed inexpert of plagiarism perhaps the practice of an institution-wide, binding plagiarism policy should be adopted similar to those applied at Universities everywhere.

Certainly, if the media has any hope of staying off the (rapidly approaching) statutory regulation of the press it should avoid calling on Government to define a fundamental principle of their core business. Unfortunately, the manifest lack of education on plagiarism in the media does not illustrate its ability to maintain a self-regulating regime.

The intellectual property issue

Thus, while plagiarism is certainly a “very traumatic thing”,[27] it is NOT a criminal offence and therefore not without more within the jurisdiction of any police service.

The common law crime of theft requires that another person permanently deprive the owner of possession and/or use of his corporeal property with the intention to appropriate such property into his estate.[28] Therefore, since ideas, words or sentences are incorporeal things (without a physical presence in the material world) they are not capable of being stolen. Furthermore, since plagiarism by default entails the reproduction of text, the original author is not dispossessed of ownership. The fact that plagiarism may deprive the first author of the financial or other value derivable from his work does not alter the position.

However, while criminal law does not apply to plagiarism, in some cases it may result in judicial proceedings on another basis.

The principles of copyright law dictate that production, attempted or actual sale or hire, distribution or dealing in any infringing material will constitute a criminal offence, provided that the person was aware of the fact that the work was (or contained) infringing material.[29]

Therefore, where an author commits intentional plagiarism and proceeds to deal in that work the elements for criminal copyright infringement (and not theft) are met. The inclusion of attempted use[30] in the Copyright Act therefore excludes the defence that no real income was generated by the infringement.

Furthermore, each instance of infringement is punishable by 3 years imprisonment and/or a R5000 fine (for a first offence)[31] or 5 years imprisonment and/or a R10 000 fine in the case of a further offence.[32]

In the case of journalistic plagiarism, the editor who bears knowledge of plagiarism will be liable in addition to the journalist(s). However, since the Act requires actual knowledge of copyright infringement, the doctrine of vicarious liability will not extend to the editor who was not alarmed (however negligently) to the presence of plagiarism.

However, the criminal provisions of the Act are seldom applied to instances of plagiarism for the simple reason that copyright infringement will only occur where a substantial part of the original work has been reproduced.[33]

This does not require verbatim plagiarism, but merely that a sufficient portion of the original work be reproduced. The test for a substantial reproduction refers to the quality (contextual merit) of the reproduced part(s) over and above the quantity of copied content.[34] A journalist may therefore be guilty of infringement where she copies only one key phrase from another but fails to properly acknowledge the source.

Fortunately, plagiarism in the media (and elsewhere) may also lead to criminal copyright infringement where no direct reproduction occurred. On occasion, the Court has held that a substantial part of the work would be reproduced where a detailed, original combination of ideas are borrowed from the original text.[35] This would of course render most cases of inspiration plagiarism an offence, especially where a member of the media lifts a story from another source.

The final word

Trust – it is indeed lamentable that the media considers the credibility of its sources as the first line of defence against journalistic plagiarism, while it is content to hide behind journalistic privilege to defend its pronouncements.

However, it is not unreasonable to assume that the reader will trust that his morning paper was produced by some journalist’s sweat of the brow. Unfortunately, it is increasingly obvious that the journalist in question did not always intend for his work to appear in that particular publication. And mind you – remunerating the first author or publisher does not change plagiarism into journalism.

It is easy to establish more than one instance of plagiarism in every issue of every newspaper on sale today, and clearly no degree of rigorous self-regulation is equipped to eliminate this heinous practice while the media admits to a rudimentary (and largely erroneous) understanding of plagiarism.

Of course, the press will be swift to counter with an argument involving restraints of time and resources. However, “nowadays [journalists] don’t even have to go out of the office”[36] to collect information for an article. Therefore, one may reasonably expect someone to spend at least some time doing more than press Ctrl+C, Ctrl+V, print.

[1] The South African Press Code (the Code) Section 1.8. Available at

[8] Times Live 30/01/12 Press code doesn’t address plagiarism para 10. Available at

[9] Times Live Supra para 1.

[10] Times Live Supra para 2.

[11] Times Live Supra para 8.

[12] Times Live Supra para 2.

[13] Times Live Supra para 3.

[14] Supra

[15] Times Live Supra para 4.

[16] Supra

[17] Supra

[18] Times Live Supra para 5.

[19] Supra

[20] Times Live Supra para 9.

[21] Times Live Supra para 12.

[22] Times Live Supra para 7.

[23] Times Live Supra para 10.

[24] Times Live Supra para 1.

[25] Stellenbosch University SU policy on academic integrity: the prevention and handling of plagiarism Calendar 2012 Part 1: General para 5.2.1 p274

[26] This categorisation of plagiarism is the author’s own. For alternative classifications see: Harvard University What constitutes plagiarism? Available at; Princeton University Examples of Plagiarism. Available at

[27] Times Live Supra para 8.

[28] For a discussion of theft see; Burchell J and Milton J 2002 Principles of Criminal Law 2ed Juta 540 et seq.

[29] The Copyright Act 98 of 1978 s27(1).

[30] S27(1)(b) refers to “offers of exposes for sale or hire”.

[31] S27(6)(a).

[32] S27(6)(b).

[33] This requirement is implied by s1(2A) of the Act. For a discussion of the substantiality requirement see also: Klopper H et al. 2010 Law of Intellectual Property in South Africa LexisNexis para 27.2.2 p202.

[34] Dean OH 2006 Handbook of South African Copyright Law Service 13 Juta 1-37 – 1-38. This was confirmed by the Supreme Court of Appeal in Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA).

[35] Galago Publishers (Pty) Ltd v Erasmus 1989 (1) SA 276 (A) 290H.

[36] Times Live Supra para 14.

Cobus Jooste