Sunday, April 19, 2009

Does Plagiarism Or Ghostwriting Amount to Copyright Infringement? by RK Dewan and V. C. Mathews

Ghostwriting is a profession by which a professional writer is paid to write books, articles, stories, reports, or other content which is credited to another person[1]. Various celebrities, executives, political figures etc. hire ghostwriters to do the work for them and then they claim the work as their own.

A ghostwriter may be asked to edit and refine a rough draft or he may be asked to create an article from start to finish in which case the employer may give him a couple of points or a basic idea of what he requires. The time period spent by the Ghostwriter on writing the work depends upon the work or a time period set by the employer. The cost of the same would range from between $30,000 to $ 100,000[2].

Plagiarize means to appropriate (ideas, passages etc) from another work or author[3]. It involves wrongfully appropriating someone else's ideas, theories, research results, or even words and phrases and presenting them as one's own[4]. Plagiarism is frowned upon all over the world. This is looked at very closely especially at Universities which require their students to write a dissertation or a thesis for obtaining a passing grade.

Infringement of copyright means any copy including any colorful imitation, made or imported in contravention of the provisions of the Copyright Act, 1957[5]. The question that rises is whether plagiarism would amount to copyright infringement? The same can be answered through an illustration. Suppose an individual borrows a friend's paper and passes it of as his/her own, it would constitute an academic offence and will have an impact upon his/her academic record. If the same individual has this very same paper published as his own and the original author gives his/her consent to the publication, then it may be a case of plagiarism but it won't be a case of copyright infringement[6].

In Universities, when a student is required by the rules of the institution to do a thesis or dissertation by himself, giving the same to Ghostwriters would amount to a contravention of the rules and guidelines laid down for the same. Thus the action of handing in another's work as the individuals own is illegal in nature and would attract punishment.

To determine if a case of plagiarism amounts to copyright infringement, there exists three conditions. They are as follows:

1) the plagiarized work must be protected by copyright
2) the author has not given authorisation for the usage of his work
3) false attribution of authorship[7]

By plagiarizing, an individual is in a way stealing the hard work put in by another to be his own. The basic idea of IPR protection is to reward the individual who has put in his skill and labour into the creation of the work. Attribution of the same by another person is unacceptable.

Ghost writing on the other hand is a method by which both parties are satisfied by the arrangement they draw up. If we look at it closely we see that the Ghostwriter knows beforehand that his work will be turned over to the individual who employs him, to be used in a manner which the employer wants. The Ghostwriter is given a very high remuneration for the same. The remuneration is the reward for his work. The Ghostwriter is aware of the same and is happy to hand over his work for the remuneration. There is no plagiarism in the same because there is no wrongful appropriation of the Ghostwriters work. He willfully turns over the work and gives up all rights in it for a due consideration.

The question is then whether copyright protection should be provided for the work. As the Ghostwriter is the original creator of the work, in whom should the copyright subsist? The question is answered by the fact that the Ghostwriter agrees to turn over all rights of the created work to the individual who employs him. He is given a good remuneration as his reward for the same. Thus it can safely be said that the copyright vests in the
employer rather than the Ghostwriter.

The concept of Ghostwriting is on a steady increase. It is not something which is ethical in nature but in contemporary times, it is one which is very much in existence.

There is another issue in ghost Writing- the question is:
Would Ghost Writing amount to passing off?

To illustrate, when a fan of Jeffery Archer buys a book where the author is shown to be Jeffery Archer he expects to purchase a novel written by Jeffery Archer. If the novel is written by someone else then is the reader not deceived into buying a book which he believes to be authored by Jeffery Archer. Its obvious that is this day & age publishers would like to publish as many books in the name of a "Best Selling" author & therefore Ghost Writing becomes economically expedient when the author himself is not able to churn out enough books.

1. en.wikipedia.org/wiki/Ghostwriter

2. publishersweekly.com/article/CA6338637.html

3. Collins English Dictionary

4. Michael Glick, Plagiarism, salami, ghostwriting and other forms of flattery; jada.ada.org

5. Sec. 35 of THE Indian Copyright Act,

6. Francisco, Javier Cabera Blazquez, Plagiarism: an Original Sin

7. Supra at fn. 6

Dr. Mohan Dewan and V. C. Mathews, Advocates with R. K. Dewan & Co. - Intellectual Property Rights Protection Lawyers. Get information on how our IPR lawyers help in case of copyright infringement litigation.

1 comment:

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