‘I Know It When I See It’: On Academic Plagiarism, and How to Assess It

Abstract

In the academic context, plagiarism is usually seen as an ethical offence, the boundaries and definition of which are often unclear. However, in some countries, plagiarism is also a legal wrong, amounting to copyright infringement. This article proposes a test for assessing plagiarism of academic works. The test is based on the law and jurisprudence of a particular country – Portugal – , where plagiarism is framed as copyright infringement. Article 196 of the Portuguese Copyright Law sets four elements that must be fulfilled for a finding of plagiarism: there must be a protected work; the alleged plagiarist must have used a partial or total reproduction of that work; the alleged plagiarist must have failed to attribute the authorship of the work to its rightful creator; and the work of the alleged plagiarist must lack its own individuality. The authors argue that, even if the law of a particular country does not frame plagiarism as a legal offence, these elements should be part of a test to be adopted and applied by academic institutions for the sake of legal certainty.

Keywords: copyright infringement, plagiarism, idea-expression dichotomy, academic best practices, academic works, originality