PLAGIARISM IN GERMANY

Authors: Dr. Germán Ruipérez, Full Professor at Universidad Nacional de Educación a Distancia of Madrid (Spain) and Dr. José-Carlos García-Cabrero, Associate Professor at the Universidad Nacional de Educación a Distancia of Madrid (Spain) in ‘Plagiarism and Academic Integrity in Germany’ Plagio e integridad académica en Alemania’ Published in ‘Comunicar’

The legal arena

The term plagiarism (Plagiat) is deemed by jurists to be a colloquial term referring  to a particular case of copyright infringement considered in Article 23 of the German Intellectual Property Act (Urheberrechtsgesetz), which states that «preparations or other types of transformations of a work can only be published or used with the permission of the original creator of the prepared or transformed work». Furthermore, according to Article 97, when a person consciously appropriates the authorship of a thought belonging to a third party, thereby infringing existing copyright or exploitation rights, this is unlawful plagiarism that grants the right to compensation. Therefore, in order to talk of unlawful plagiarism in the German legal sense, the existence of recognized copyright of the original work has to converge with the intention to deceive . The existence of the copyright or exploitation rights of the original work is a clearly objective element. Therefore, if an author literally reproduces text that lacks any legal protection, we could not legally talk of plagiarism, since there would be no infringement of any third party rights. However, it could be said to be academic plagiarism. In addition, if an author cites a third party in accordance with the academic reference regulations in his area of knowledge, we could not talk about academic plagiarism, but, in the end, we could talk of an unlawful event from a legal point of view if it was, for example, a very extensive and unjustified citation in its own context. This could be an infringement of the citation right considered in Article 51 of the German Intellectual Property Law . The intention to deceive and the knowledge of the original work is a subjective element and can, therefore, be difficult to prove. In order for unlawful plagiarism to be attributed to a person, the said person has to have acted consciously, and it is necessary to prove the express premeditation or intention of the deceit. For example, if several paragraphs originally written by a third party are literally reproduced without citing the aforementioned third party, and without using quotation marks, this would be evident proof of the will to commit fraud. The intention to deceive would also be proven if, for example, an author commits the same error as a specific publication upon citing an original source, since it can be inferred that the said original source was not consulted, but rather that it was copied from the publication that was expressly not mentioned, with the original misprint included . However, the mere fact that a thought or idea belonging to a third party is reproduced in a written work does not necessarily imply unlawful plagiarism, since it may have been a casual reproduction that was done unconsciously. From a German legal point of view, this would not be plagiarism, but rather a «double creation» or «Doppelschöpfung» phenomenon. According to German legal terminology two authors casually write about the same thought or idea without either of them being aware of the other .

Colloquial use

The term for plagiarism in German, «Plagiat», comes from the Latin word «plagium» (theft of slaves, in turn related to the Greek form πλαγιος, deceitful).

The German Duden (2009) dictionary offers a more long-winded definition, which is the most extensive in the colloquial use of the term, and whose entry mentions that it is about the «improper appropriation of thoughts, ideas or similar of a third person in the artistic or research, and its publication. Theft of intellectual property; [legal language] intellectual theft, forgery».

The academic world

Academic plagiarism (akademisches Plagiat) in the German research arena has certain similarities with the more extensive meaning in the international community. Therefore, the definition of Fishman (2009) is often cited:

«Plagiarism occurs when someone:

1. Uses words, ideas, or work products. 
2. Attributable to another identifiable person or source.
3. Without attributing the work to the source from which it was obtained.
4. In a situation in which there is a legitimate expectation of original authorship.
5. In order to obtain some benefit, credit, or gain which need not be monetary».

Therefore, it is a phenomenon with very specific characteristics.

Firstly, reproducing someone else’s text without quotation marks can be deemed academic plagiarism, as well as when any kind of periphrasis based on an original that is not cited is used.

Secondly, plagiarism is committed when the primary author is not sufficiently identified – in other words, when a direct attribution that would be expected by the reader does not appear. Thus, for example, when ideas from a work have been used, it would not be sufficient to include such work in the bibliography as another reference, but rather it would be necessary to always cite it on whichever pages the singular thoughts or ideas–are being used.

Lastly, it is not necessary for there to be financial gain, since the intention to obtain public recognition for apparently being the author of an idea or thought of a third party not named or insufficiently cited would be sufficient. Since 2014, it is no longer deemed essential for the subjective intention to deceive –which is always difficult to prove– to exist in order to qualify an act as academic plagiarism, but it would be necessary to argue this in order to deal with the case from a legal point of view.