Intellectual Property Law's Plagiarism Fallacy

By Mandel, Gregory N.; Fast, Anne A. et al. | Brigham Young University Law Review, July 1, 2015 | Go to article overview

Intellectual Property Law's Plagiarism Fallacy


Mandel, Gregory N., Fast, Anne A., Olson, Kristina R., Brigham Young University Law Review


I. INTRODUCTION

Intellectual property law suffers from somewhat of an identity crisis. A robust debate has raged for decades concerning how intellectual property law can best incentivize creation and whether it should have more of a natural rights or commons bent than current doctrine.1 This debate has been ignorant of a critical fact. To the public, intellectual property law is not about these traditionally identified objectives. Rather, in the public mind, the primary objective of intellectual property law is to prevent plagiarism.

This article presents an original series of experiments that reveal preventing plagiarism to be the leading perceived basis for intellectual property protection in the United States. This perception spans a wide variety of subject matter in both the copyright and patent domains, ranging from books and music to software and pharmaceuticals. Whether people are evaluating what they believe intellectual property law actually is, or what they think the law should be, the plagiarism fallacy governs popular responses.

Though the widespread plagiarism fallacy will appear antithetical to most who focus in intellectual property and is contrary to the law on the books, it nevertheless explains much previously confounding behavior. illegal intellectual property activity has become surprisingly prevalent, from the unlawful file sharing of copyrighted movies and music,2 to routine posting of infringing videos and other media on the Internet with ineffectual "no copyright intended" disclaimers,3 to rising concerns about the use of 3-D printing technology to manufacture patent-infringing products.4 Many people have tried to explain why otherwise law-abiding citizens seem to find intellectual property infringement to be unproblematic in many circumstances. 5 The studies presented here deliver an important clue. Rather than indicating a general immorality or ethical leniency concerning intellectual property law, the perceived acceptability of infringing behavior instead may stem from a disconnect between popular understanding of intellectual property law and its actual objectives.

We develop our plagiarism fallacy theory through a series of three experiments concerning lay understanding and preferences for intellectual property rights. Part II describes the first two studies. The first study involves an exploratory survey of public attitudes about the copying of another person's creative work product. The responses indicate a dominant focus on moral and ethical concerns with copying, but not legal concerns. The second study focuses on popular perceptions of the basis for intellectual property law. Preventing plagiarism is the most commonly selected objective, surpassing all traditionally identified objectives, including incentives, natural rights, and expressive alternatives.

The third study, presented in Part iii, is substantially more involved. A national sample of approximately 450 American adults took part in a set of intellectual property experiments. The experiments were designed to test whether the participants believed that the copying of particular intellectual works should be allowed or prohibited in a series of scenarios. These scenarios covered a wide range of creative and innovative production in both artistic and technological fields, including books, music, painting, medicine, electronics, and software. The scenarios varied based on what type of intellectual creation was being copied (an idea, expression of the idea, or a complete creative product), and whether there were any factors that might mitigate perceived infringement liability (such as copying for educational purposes, without commercial benefit, with attribution, or with permission). Study participants were queried concerning both what they thought intellectual property law should be and what they thought current intellectual property law actually is.

The results of the studies provide substantial support for the plagiarism fallacy hypothesis. …

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