Term and Definition of Plagiarism
The term plagiarism refers to the unauthorized adoption of third-party intellectual works while pretending authorship. Plagiarism occurs especially in the fields of science, art, literature, music, as well as in commercial contexts. Legally, plagiarism constitutes a violation of copyright or related intellectual property rights. The boundaries and legal consequences are primarily governed by national and international copyright law.
Legal Foundations of Plagiarism
Copyright Classification
Plagiarism is not an independent criminal offense but is regarded under German law as a copyright infringement (§§ 97 et seq. UrhG) or as a violation of competition law. The focus is on the question of whether the adoption of third-party, personally intellectual creations affects a copyright-protected work (§ 2 UrhG).
Civil Law Consequences
Injunctive Relief Claim
Injured parties can take civil action against plagiarists and file for injunction . The objective is to prohibit the unlawful use of the work.
Claim for Damages
In addition to injunctive relief, the original author is entitled to a claim for damages . The amount of damages is determined based on the license analogy, lost profits, and the infringer’s gain.
Claims for Removal and Destruction
Additionally, the rights holder may request that unlawful reproductions be removed or destroyed.
Criminal Law Aspects
Criminal Liability under Copyright Law
According to § 106 UrhG, anyone who reproduces, distributes, or publicly makes available a protected work without the consent of the rights holder is subject to prosecution. If this is done for commercial purposes (§ 108a UrhG), more severe penalties may apply.
Fraud Offenses and University Law
Those who fraudulently obtain academic degrees or titles through plagiarism regularly also commit an act of fraud. University regulations typically provide their own sanctions for this, up to and including the revocation of academic degrees.
Objects of Protection – Which Works Can Be Plagiarized?
Works within the Meaning of Copyright Law
Works capable of being plagiarized are those that constitute a personal intellectual creation (§ 2 UrhG). These include, in particular:
- Literary works (e.g., texts, books)
- Musical works
- Photographic works and photos
- Works of fine art and architecture
Special Cases
Not all adoption of third-party content constitutes unlawful plagiarism. For instance, mere ideas, facts, or non-creative content are not protected by copyright. The protectability must always be assessed on a case-by-case basis.
Distinction: Plagiarism, Citation, and Inspiration
Permissible Quotation
Under certain circumstances, the UrhG permits the use of third-party works within the framework of quotation rights (§ 51 UrhG), provided an original scholarly work is created and the source is properly cited.
Inspiration and Paraphrasing
Drawing inspiration from works or creating adaptations is permissible under certain conditions. The prerequisite is that the newly created work possesses sufficient originality and does not constitute an impermissible reproduction.
International Law: Plagiarism in an International Context
In the international context, particular relevance is given to the Berne Convention and other multilateral treaties which regulate cross-border protection of intellectual property. Plagiarism may consequently have international legal consequences, especially regarding claims for injunction and damages.
Plagiarism in Academia and Education
Significance in Higher Education
In an academic context, plagiarism is penalized as a violation of ‘good academic practice.’ Universities and research institutions have special examination procedures and sanction measures in place (e.g., withdrawal of degrees, expulsion).
Examination Procedures and Plagiarism Detection Software
Technical tools such as plagiarism detection software are used to uncover plagiarism. Suspected cases are usually reviewed individually by examination boards or committees for academic misconduct.
Legal Consequences and Sanctions for Plagiarism
In Civil Law
Sanctions range from claims for removal to damages, as well as claims to information and accounting.
In Criminal Law
Here, a fine or imprisonment may be imposed, depending on the nature and extent of the legal violation.
Disciplinary Measures
In addition to civil and criminal sanctions, disciplinary consequences may arise in the academic sector and public administration.
Prevention and Avoidance of Plagiarism
Awareness and Training
Education on the legal situation, training in scholarly work, and correct citation are considered the most important tools for preventing plagiarism.
Technical Measures
Automated text-checking systems are established tools for the prevention and detection of plagiarism.
Summary
Plagiarism is legally defined as the unauthorized adoption of third-party creative achievements and constitutes a serious legal violation. The legal consequences comprise extensive civil, criminal, and disciplinary sanctions. The precise assessment depends on the individual case and the protectability of the adopted work. Preventive measures and awareness are central components in the fight against plagiarism.
Frequently Asked Questions
What legal consequences can result from proven plagiarism?
Plagiarism can lead to a wide range of legal consequences. In an academic context, university exam regulations usually apply, which provide for sanctions such as exclusion from exams, withdrawal of academic degrees, or expulsion. In civil law, plagiarism may constitute a copyright infringement if protected works are reproduced without sufficient individual creation. This may give rise to claims for injunction, damages, or disgorgement of profits. In individual cases, the publication of plagiarism may even be criminally relevant, for example when fraud for advantage (e.g., scholarship applications) is committed or violations of the Copyright Act (§ 106 UrhG), with penalties including up to three years’ imprisonment or fines. Professional consequences, such as dismissal, loss of reputation, or entries in a criminal record, may also occur.
How is plagiarism legally assessed?
The legal assessment of plagiarism occurs in several steps. First, it is determined whether the affected work is even protected by copyright; this requires a personal, intellectual creation (§ 2 para. 2 UrhG). Next, it is examined whether there has been unauthorized adoption (reproduction or adaptation) of essential characteristics of the work. The key point is the comparison between the original and the alleged plagiarism (‘work comparison’) taking into account the so-called ‘small coin’ (even simple but original works are protected). To legally prove plagiarism, it must be clear that adoption was intentional or negligent for the benefit of the recipient. If it is only an ‘idea’, this is usually not protected by copyright, since only concrete expressions are protected.
Who bears the burden of proof in the case of an accusation of plagiarism?
As a rule, the party making the accusation of plagiarism also bears the burden of proof that unlawful adoption has taken place. Proof is often provided by comparing the work and the alleged plagiarism, sometimes supported by expert reports, digital plagiarism detection software, or expert witnesses. Only when there is sufficient similarity and no lawful use (for example, by license) is established, is the accused required to provide a rebuttal, for instance about their own creative process or possible ignorance of the original.
To what extent is ‘free use’ or quoting legally permitted?
Copyright law contains exceptions that allow the use of third-party material. The ‘free use’ (§ 24 old UrhG; up until 2021, now § 51a UrhG) permitted adaptations if the new work distanced itself sufficiently from the original so that the original faded into the background. Today, this boundary is more narrowly defined: for adaptations, consent of the original creator is required unless it is an independent new work. Quotations are allowed under certain conditions (§ 51 UrhG): The cited content must be clearly marked, there must be substantive engagement with the cited material, and the extent of the quotation must be ‘required by the specific purpose.’ If any of these conditions are missing, a copyright violation may occur despite citation.
What role do rights holders and exploiters play in the enforcement of plagiarism claims?
The legal standing to assert plagiarism claims lies originally with the author. However, rights holders (e.g., publishers, collecting societies) can also derive their own claims and assert them in their own name within the scope of a granted right of use (§ 31 et seq. UrhG). Collecting societies such as VG Wort are also authorized to pursue claims for injunction and damages for their members. In practice, this means that both individual authors and their licensees or legal successors may take action against plagiarists.
What deadlines apply for asserting copyright claims in cases of plagiarism?
The enforcement of copyright claims is subject to the regular statute of limitations pursuant to § 195 BGB, which is three years and begins at the end of the year in which the rights holder became aware of the infringement and the identity of the infringer, or could have become aware of it without gross negligence (§ 199 BGB). For criminal prosecution, shorter limitation periods usually apply depending on the offense. Delayed assertion of claims may lead to a loss of rights (limitation), although longer limitation periods are possible as exceptions, for example in the case of continuing offenses.
What are the differences between scientific, literary, and artistic plagiarism from a legal perspective?
Legally, the scope of copyright protection does not depend on the genre (scientific, literary, or artistic), but on the level of creativity of the respective work. However, investigative practices and standards of proof differ in actual implementation: In academia, in addition to copyright, examination and university law are in focus, whereas in the arts, more subtle adaptations (e.g., collages, sampling) often fall under art copyright law. In literature, there are also specific exceptions for parody, pastiche, and quotations. Overall, however, the fundamental principles of copyright apply across all types of works; only the scope of interpretation varies.
