The law of the commons would not be a defence in plagiarism

I make no apologies for returning to the subject of plagiarism for the third time in recent weeks.

Plagiarism — recycling other people’s ideas or words without acknowledgment — erodes readers’ confidence in the integrity of our journalism.

It makes readers feel cheated, as indicated by the many readers who keep complaining about it.

Sometimes people plagiarise without knowing they are committing a sin and infringing a legal right. But ignorance is no excuse.

And unfortunately plagiarists include those who do not know and those who know what is plagiarism — journalists, authors, professionals, academics, and students.

No class of people is immune to plagiarism.

This is the situation I found when Mohamed Osman wrote on April 17 as follows: “While I am ardent reader of the Daily Nation, I have come across an article written by Luis Franceschi named Letter to Isis — violence will only mess up your dreams. While the respected dean (Dr Franceschi is the dean of Strathmore Law School) has written about this, he has just drafted verbatim from a video I watched three years ago.

If the scholars are just copying and pasting, what would the students do? Indeed it’s unethical to plagiarise someone’s work without referencing. Do Nation media do review before publishing articles? Coz if that was done the aforementioned article couldn’t have seen the light of the day.”

I checked out the video and Mr Osman was right. Certain paragraphs or statements were straight from the video.

However, Dr Franceschi responded that the video was anonymously posted on the internet and there was no way he could have tracked the authors or given credit to anyone.

Besides, he added, the opinions expressed in the videos “are common knowledge or logical conclusions.”

He also said he had revised the statistics given in the video using other sources.

“Certainly, I could have mentioned the above and could do so in a future piece,” he added.

“Finally, I take any blame and responsibility. If the author(s) are found I would be very ready to mention them and if necessary compensate them. I really tried looking for them.”

COPYRIGHT LAWS
Dr Franceschi also responded to another reader who posted his complaint online. “Thanks Abracadabra for giving me the chance to clarify,” he said.

“I consulted more than 10 experts on the matter and this led to the revision of relevant statistical facts. Others are general opinions which can’t be attributed to anyone specific.”

He went on to explain that experts call them “common knowledge”, “logical conclusions”, or simply “the commons”.

“Keep also in mind that the twist of the article is different from any of those videos (there are several) which are alarmists and have no credits. True, I could have mentioned this and will do so in a future piece, for the matter will continue thanks to the many emails and comments I have received... most of them quite incisive and relevant. This is appreciated,” he said.

I think, in the circumstances, Dr Franceschi acquitted himself well. However, I do not think he can rely on the commons as a defence.

The term “commons” has its origins in the traditional English legal term for common land or shared natural resources in which each member of the community has an equal interest.

But in intellectual property the term cannot be applied to works simply because one cannot find or trace the owner. 

In fact, most copyright laws do not recognise commons unless it is in reference to works that have fallen into the public domain or are traditional knowledge or folklore.

The commons cannot exist where the potential for somebody emerging to lay claim to a work exists.

Even the term creative commons, which has been coined as an alternative in the internet era, would not be of much use as a defence because it requires the content creator to specify what rights of his copyright he is giving up so that other people can share, use, or build on his works.

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