The charges of plagiarism against Rajiv Malhotra throw up classic philosophical dilemmas that underlie the idea of intellectual property rights in general and copyrights in particular. How do you police a realm of ideas that is neither marked by “exhaustion” (ideas are potentially infinite) nor “exclusion” (one person’s use of an idea does not limit another’s use) and whose logic lends itself to infinite concurrent copies?

Copyrights and patents present two scenarios of intellectual “theft”. While patents inhere fundamentally in ideas, copyrights do not protect ideas but only the text – the syntax, the exact and precise sequence of words. For instance, if I author the sentence “the cat jumped the wall”, you can “copy” it in two ways and yet escape the probe of the internet-based plagiarism checker Turnitin. You can either say, “the wall was jumped by the cat”, or you can say, “the cat, a feline creature, jumped the wall”. Both cases present no copyright violation.

This crude example goes to illustrate that it is possible to “copy” without it legally qualifying as “plagiarism”, because the sequence of words and the syntax changes in the second and third sentences. It is therefore also possible for Rajiv Malhotra to accomplish, as Mihir Sharma puts it, a “complex feat of intellectual deception” and yet find support from “independent readers and reviewers”. Legal instruments – such as copyrights – which have weak philosophical moorings often lead to tenuous laws with enough loops and loopholes to be variously appropriable. Let’s see how this works in Malhotra’s case.

A few days ago, historian Richard Fox Young, who teaches at a seminary in Princeton, New Jersey, charged Malhotra with plagiarism. He listed seven instances where Malhotra’ books, Breaking India and Indra’s Net, appeared to have lifted out whole passages from various works, in particular from Unifying Hinduism by Andrew J Nicholson. A look at the passages listed by Young points to broadly two modes of deception adopted by Malhotra that are simultaneously designed to pre-empt charges of plagiarism. In both cases let me outline the technique and then follow it up by the justification that has been advanced by the “defenders” of academic freedom and “scientific publishing”.

Technique one: To begin a sentence differently and/or to change a few words in the passage so as to justify not using quotation marks, then follow it up with an end note with a vague or incomplete attribution.
Defence one: (a) “The text in question is sufficiently rephrased not to justify putting it under ‘quotes’. This means that by standard practice it is not needed to immediately place the reference at the end of the sentence” (see point no. 1 here);

(b) “…there is sufficient paraphrasing not to justify putting them under ‘quotes’;” (see point no. 2 here)

(c) “There are two minor but important differences in the text from Nicholson... and the text by author. Author inserts the word ‘reconciled’ which is not used by Nicholson. Author leaves out ‘contemplative’ which was used by Nicholson. These two changes can be attributed to author’s own literary license which makes a different reading of the intent as used by Nicholson. Therefore, author is sufficiently justified to leave out ‘quotation’ marks as this is NOT verbatim.” (see point no. 3 here)

Technique two: To sandwich a plagiarised passage or sentences between other paragraphs/sentences that have attributions. The defence can rest, as it indeed does, on the following:
Defence two: “As per the norms under phraseology and plagiarism, common phrases can be used independently. The whole sentence/s is not verbatim and hence does NOT justify quotes. Yet, author has referred to Nicholson everywhere surrounding the text which means the reader is already clear by now that these discussions come from Nicholson. There is no need to add reference for Nicholson at the end of each sentence.” (see point no. 4 here)

Whether we like it or not, plagiarism, that is camouflaged under aforementioned guises, may not qualify for a legal case of copyright violation. Regardless, there has been an online petition demanding HarperCollins, the publisher of Indra’s Net, “to make a formal, public apology and to withdraw the book from the market”.

The petitioners may feel vindicated by developments in the row. Malhotra has decided to bring out a new edition of Indra’s Net which would be cleansed of an “unreliable and contradictory source like Nicholson” and which would be “better off” citing more reliable Indian authors on the subject. Or the petitioners may not feel vindicated at all. This might seem to them as too honourable an exit for an author who might have just written the manual of “how to plagiarise without it seeming so”.

Swapping roles

Here is the irony of the situation where two sides – the left and the right – seem to have swapped places, as some say, in a turf war. It has reminded the Indian right wing of the virtues of free speech. Madhu Kishwar’s petition directed at the “lovers of truth” and haters of “censorship” is a case in point. The right brigade, which may have torched Wendy Doniger’s The Hindus if it had its way, is now espousing the morality of liberal free speech.

On the other hand, a group of progressive intellectuals and academics who had thrown their weight behind Doniger are demanding the withdrawal of Malhotra’s book, not realising that the laws they want stringently applied have, in varied avatars, curtailed free speech in the past. A copyright claim by the “Babasaheb Ambedkar Source Material Publication Committee” that forestalled attempts by a few scholars to bring out critical editions of Ambedkar’s work is a case in point.

The truth of the matter is that copyright laws are limited in their application by the predicaments that underlie propertisation of ideas. It cannot police beyond a point without transgressions that we may not anticipate yet. The right over the “copy” in its present form cannot preclude the possibility of unethical modes of copying. If it were to do that, it would be a monstrous delimitation of dissemination of ideas. And, to demand that books be withdrawn is to dilute our own inks and our worth as votaries of free speech and access.