The Courts Tackle Plagiarism: Comments on a Recent Judgment

In a judgment handed down on July 17, 2020 in the case of “A., N. H. v. C.,S.A. s/ Propiedad Intelectual Ley 11.723” (Docket No. 24791/2020), Division J of the National Court of Appeals in Civil Matters upheld the rejection of a claim for plagiarism of a legal document.

In the case at issue, the defendant accused of plagiarism had acted as counsel in a past labor claim against the plaintiff, who had once employed the defendant's client at his law firm.

In defending himself in the labor lawsuit, the plaintiff counterclaimed plagiarism on the grounds that the lawsuit filed against him, signed by the defendant, constituted an unauthorized copy of the claims he had filed years before in different cases, both in terms of structure and content.

Thus, the plaintiff filed a plagiarism action before the civil courts, arguing that the defendant had unlawfully acquired copies of his lawsuit briefs from an intern who had worked at his law firm while attending law school and who had a relationship of some sort with the defendant. On this basis, he accused the defendant of plagiarism under the terms of sections 71 and 72 of Intellectual Property Law No. 11,723.

At the lower court, the intervening judge rejected the plagiarism action filed by the plaintiff, mainly because the judge believed that the defendant had not used the plaintiff's personal contribution (i.e., “originality”) in the disputed document.

 

The Court of Appeals, which recognized that intellectual property in legal texts is an issue that has not been thoroughly analyzed so far either in legal literature or case-law, confirmed the lower court’s rejection by resorting to multiple arguments:

 

• Preliminarily, the Court of Appeals held that legal writings should not be judged with the same rigorousness as academic plagiarism because what is required of the lawyer is not originality, but rather the elaboration of a thought and argument suitable to the conflict in question.

 

• Registration of the work (that is, the lawsuit) before the National Copyright Office did not give the plaintiff automatic protection, especially considering that the plaintiff had made the registration after the defendant filed the lawsuit against him before the labor courts.

 

• The lawsuit that the plaintiff considered to be plagiarized lacked the creativity or originality necessary to merit  copyright protection.

 

In that vein, the Court of Appeals accepted the defendant’s arguments that similarities in some linguistic aspects of the documents, including certain phrases and drafting style, did not result from copying the defendant, but rather from the prior employment relationship between the plaintiff and the person who had supplied the complaint to the defendant. In fact, the latter had participated in the drafting of the document together with the plaintiff while he was employed at the law firm.

The Court of Appeals also agreed with the defendant that the lawsuit deemed to be plagiarized responded to normal parameters of structure and content used in the legal field that are readily accessible to the general public.

 

• Finally, the Court of Appeals concluded that the defendant had not acted with malice because he was unaware of the authorship of the legal document. In this respect, the Court of Appeals considered that the fact that the defendant used the allegedly plagiarized document against the plaintiff himself demonstrated the defendant’s lack of bad faith.