The Art of Copying: Plagiarism

13 June, 2024
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Intellectual property
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Lucas Charnet


Millennials are considered the first generation to use the famous “copy and paste” to write school papers. And although in the internet era it is easier than ever to take advantage of someone else’s work, the art of copying is as old as writing itself. In this article, we will explore everything you need to know about plagiarism from its origins to its current legal implications.

Definition and Legal Context

In ancient Rome, the term “plagiarism” had a very different meaning than it does today: it referred to the kidnapping of free people to sell them as slaves. However, the first use of “plagiarism” as a behavior of appropriating someone else’s intellectual creation is attributed to the Roman poet Martial, who suffered the “theft” of several of his epigrams.

But closer to our days, although the Intellectual Property Law and the Civil Code do not mention the word “plagiarism,” the Penal Code does so in its article 270, considering it a crime against intellectual property that the Supreme Court has defined as the act of “substantially copying someone else’s works and presenting them as one’s own.” In other words, plagiarism is the act by which a third party claims as their own a work that is not their property, thus affecting both the moral right of the work (authorship) and the economic exploitation rights (public communication, reproduction, distribution, etc.).

For it to be considered plagiarism, certain requirements must be met:

The plagiarized work must be protected by copyright. Unauthorized use of patents, trademarks, trade names, and any material not subject to and protected by copyright will not be considered plagiarism. For it to be considered plagiarism, the plagiarized work must meet the originality requirements established in article 10 of the Intellectual Property Law.

There must be unauthorized use of the work. There must be use of the intellectual creation without the consent of the copyright holder. This means that if the original author or the rights holder has given explicit permission for a third party to use their work in a specific context, it will not be considered plagiarism.

False attribution of authorship. This is one of the essential elements to define plagiarism. This concept refers to the practice of presenting a work created by someone else as if it were one’s own. In other words, when someone takes someone else’s intellectual creation and shows, publishes, or uses it, claiming the authorship for themselves, they are committing plagiarism. This behavior not only infringes the property rights of the true author but also violates their moral rights, especially the right of authorship, which guarantees the recognition of the authorship of the work.

Existence of similarity between the original work and the plagiarized one. This concept refers to the extent to which the allegedly plagiarized work partially or totally reproduces substantial and structural elements of the original work in such a way that the direct influence or unauthorized copy is unmistakable. In this sense, the Supreme Court has distinguished between these fundamental elements and the accessory ones, referring to the former both in structural aspects and content, characters, dialogues, ideas, and other distinctive elements of the creative work.

Therefore, for there to be similarity between two works, it is not necessary for the copy to be literal or exact. It is enough that there is a substantial reproduction of the essential elements of the original work. For example, in the literary field, this can include the plot, main characters, and central themes. In music, similarity can be found in the melody, harmony, or rhythm. Usually, the extent of the plagiarism is an aspect that is determined by experts in the field who analyze the works in question and provide a professional opinion on the extent and nature of the similarity.

Examples of Plagiarism

As mentioned, plagiarism must affect a work protected by copyright (art. 10 LPI), such as a cinematographic, artistic, literary, musical, scientific work, etc. In the literary field, plagiarism is considered to occur when performing any of the following acts:

Copying the structure of sentences but changing the order of the words without giving credit to the original author.

Copying a work and presenting it as one’s own regardless of whether the copy is total or partial.

Reproducing a text literally in one’s own work without referencing its author through quotation marks and/or italics, even if the author is mentioned in the bibliography.

Creating a text by combining phrases or paragraphs copied from various authors without citing the sources.

Presenting one’s own previously used work. In this case, we talk about “self-plagiarism.”

Self-Plagiarism: A Special Case

Can I plagiarize myself? In a way, yes, and this happens with self-plagiarism. This concept refers to when an author presents their previous work as if it were new. It is common in the scientific and academic field, where previously published works are fragmented into several smaller parts to get more publications and thus inflate the resume with the aim of applying for positions that value the quantity of scientific production.

The problem arises because there are related rights such as the exclusive right of disclosure and the rights of exploitation of the previous work that normally belong to the scientific journal that published it. This constitutes a violation of those rights. Therefore, even if we are the original authors, it is always necessary to provide the corresponding citation.

What is Not Plagiarism?

Not everything that seems to be plagiarism is. As mentioned earlier, copyright protects the specific expression of ideas, not the ideas themselves, nor other elements of a work such as style, artistic techniques, literary genre, or knowledge itself.

For example, in the field of painting, it will not be considered plagiarism to use the same technique as another artist, with two painters being able to use the same impressionist style or the same watercolor technique without one of them plagiarizing the other. Thus, two works can share similar techniques without being considered illegitimate copies of each other. The key is in the originality and uniqueness of the resulting work, not in the procedures used to produce it.

What Can I Do if My Work Has Been Plagiarized?

Although plagiarism is not explicitly stipulated as such in the Intellectual Property Law, the protection of the rights recognized in this Law is provided for in articles 138 to 143, where we find the action of cessation, the action for damages, and precautionary measures. All these actions require the assistance of a lawyer and the representation by a court agent and are initiated by filing a lawsuit supported by the procedures of the ordinary process.

Likewise, art. 270 CP punishes with penalties of 6 months to 4 years of imprisonment those who reproduce, plagiarize, distribute, or publicly communicate in whole or in part a literary, artistic, or scientific work without the authorization of the holders of the corresponding intellectual property rights or their assignees.

Conclusion and Prevention of Plagiarism

Plagiarism is a complex phenomenon that spans from ancient Rome to the digital age. Understanding its legal, ethical, and cultural implications is essential to protecting authors’ rights and fostering a culture of respect for intellectual property. In a world where information is within everyone’s reach, it is more important than ever to recognize and respect others’ work. While new technologies have facilitated the commission of plagiarism, they also offer powerful tools to detect and prevent it, helping to preserve the integrity of creative work.

As a general rule, except in the case of self-plagiarism, the fact that someone plagiarizes our work depends on third parties. Therefore, it is crucial to take preventive measures to protect our work. One of the most effective ways to do this is by registering our works at the time of their creation. This registration serves as proof that we are the legitimate holders of the rights to the work. When a work is duly registered, we can more easily and quickly demonstrate that we are the original creators, making it easier to take legal action in case of plagiarism. Registering our works not only protects our authorship but also provides us with a solid legal tool to defend our rights and ensure they are respected.

At MES Advocats, we offer comprehensive advice and support in the process of registering and managing creative works, providing a personalized and efficient service for our clients. Our experience allows us to offer a fast, tailored service with excellent results. If you need more information or are interested in obtaining a quote, do not hesitate to contact us.

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