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  • Writer's pictureMarie-Avril Roux Steinkühler

Did you believe that ideas were not protectable ?

Updated: Jan 27, 2022

Hey lawyers, did you believe that ideas were not protectable?

They are, at least in scientific matters, according to the Berlin Administrative Court, which withdrew a doctor's title (PhD) for plagiarism of ideas.

The case and justification : ideas are protected and therefore must be referenced

Every scientific work must indicate all its sources, and this systematically, even in the case of a repetition of an idea:

"The doctoral student must be required to indicate as such, without exception, every idea and every footnote that does not originate in his or her own intellectual production, but in the work of another, as well as all passages of text taken literally or similarly from the works of others. In particular, indirect and paraphrased reproductions of foreign texts (paraphrase) must also be indicated in a sufficiently clear manner so that the reader knows in every place who is talking to whom" (02.11.2021 - 3 K 176/20).

Discorveries, ideas or thoughts are to be sourced

In practice, this means that even the reference to a discovery, idea or thought in an earlier work must be sourced, even if the earlier text itself is not quoted. This explicitly targets paraphrases, reformulations, translations, inspirations and other transpositions. The objective is to be able to distinguish precisely what the researcher's real contribution is. For the work deserves to be called 'scientific' when it advances universal thought. If it is merely an assembly of previous work, there is no real progression of thought and it has no scientific value !

The previous author is protected, certainly because his person and his work must be protected, and his right to be cited, but in this perspective, above all because he has contributed to the progress of science through his ideas and work.

This condition of scientific progress is the common thread of the German analysis of plagiarism, which authorises research establishments and administrative judges to go further than copyright law, which only recognises plagiarism in the case of copy/paste and thus allows behaviour that would fall foul of copyright to be punished.

Withdrawal of the title of doctorate is assessed on the basis of the scientific quality of the reproduction

The decision pronounces on two other important and unfortunately "classic" issues of plagiarists' behaviour:

  • the citation must be sourced in a footnote: simply citing the sources in the biography is not enough.

  • Intermediate sources must also be cited: a plagiarism ritual consists of citing a primary source, copying or drawing heavily on an analysis carried out by an intermediate source, without citing the second source. The judges consider that there is an act of deception when only the first original source is cited, and not the intermediate source.

Nice decision. I look forward to an international standardisation in this respect!

Do you have questions regarding German intellectual property law? Are you having difficulties understanding French IP law? MARS—IP helps international and French companies and individuals defend and protect their brand, ideas and intellectual productions in Germany, France or internationally. Feel free to contact us.

Photo by hoch3media on Unsplash


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