Plagiarism

Plagiarism refers, in everyday language and in academic or literary ethics, to appropriating another person’s work or ideas and presenting them as one’s own. The term has no legal definition and does not appear in the French Intellectual Property Code. Depending on what is taken, plagiarism falls either within copyright infringement, where the original form is reproduced, or within parasitism or unfair competition, or attracts no sanction at all, where only ideas are borrowed.

Plagiarism and infringement

Infringement requires the unauthorised reproduction or adaptation of the original elements of a protected work. The court compares the works by reference to their similarities and not their differences, and asks whether the elements taken bear the imprint of the author’s personality. Taking the storyline, the characterised figures, the structure or the wording of a text may constitute infringement, even without literal copying, where those elements are original. Plagiarism that conceals the source adds an infringement of the right of attribution. The plagiarist’s good faith is not a defence in civil proceedings.

Plagiarism that attracts no sanction

Copyright does not protect ideas, themes, genres, methods or information, which remain free for all to use. Taking the subject of a novel, the thesis of a scientific article, the concept of a television programme or an artist’s style is not infringement, whatever moral disapproval such borrowing may arouse. Likewise, taking short passages under the conditions of the quotation exception, with an indication of the source, is lawful. Plagiarism of ideas may, on the other hand, be sanctioned on disciplinary grounds, in higher education and research, or on contractual grounds, where a confidentiality agreement has been concluded.

Complementary remedies

Where infringement cannot be established, the victim of a borrowing may bring a parasitism claim under Article 1240 of the Civil Code, by establishing that the defendant followed in its wake so as to profit, without spending anything, from an economic value resulting from work and investment. The courts require a precise demonstration of that value and refuse to sanction the mere taking of an idea. Trade secret law offers an additional basis where the borrowing concerns confidential information obtained unlawfully.

Litigation

The infringement action falls within the jurisdiction of the judicial court, with the possibility of a saisie-contrefaçon to establish the borrowing, and is time-barred five years from the day on which the rightholder knew or ought to have known of the facts. Evidence of the defendant’s access to the earlier work and the dating of that work are decisive, hence the value of being able to produce evidence of the date of creation.

Key points

Plagiarism is not a legal concept. It constitutes infringement where original elements of form are taken, parasitism where an economic value is wrongfully captured, and remains lawful where only ideas or information are borrowed. Before taking action, identify precisely the elements taken, check their originality, date one’s own creation and establish the defendant’s access to the work.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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