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Thursday, August 23, 2012

Plagiarism by the Government

A television host turned Senator campaigning for a religious cause created a lot of uproar when his privilege speech was alleged to have been tainted with plagiarism. The accusations have become moot as the Senator and his chief of staff admitted to the academic faux pas. The legal assistant of the Senator blasted the public and the blogging media by stating whatever is in the Internet is now “public domain”. While the spirit behind the speech is noteworthy, this “blog” article shall only focus on the issues of plagiarism and public domain.

At the crux of this brouhaha is intellectual property, more particularly on copyright. This branch of intellectual property is the easiest to create in terms of form and subject matter, the longest in the scope of protection and hardest to litigate. Thus, it is most infringed of all intellectual property rights.

Affirmative Defenses
Let’s argue in reverse. The defendant here is claiming the defenses of public domain and that plagiarism is not stated specifically in the law (RA 8293, Intellectual Property Code of the Philippines). The danger of using these defenses is that both become affirmative defenses. In affirmative defenses, the accused here admits to the facts of the “crime” but excuses himself with the available limitations/exemptions under the law. Egro, the Senator through his Chief of Staff admits to the copyright and ownership by the blogger of the material “taken” from the blog. So, a denial of the “copy and paste” scenario cannot lie (pun not intended).

Public Domain
So, we have plagiarism as a non-offense and public domain as exemptions invoked. Public domain in the strict legal sense denotes that the copyright of a work has ceased. As copyright is a private right, protection cannot be lost except by either waiver or by the expiration of the term of protection. Under Philippine law, the term of protection lasts until the lifetime of the author/creator of the work PLUS fifty (50) years. In the U.S., it’s longer, up to 75 years. Epilogue interviews with the offended blogger categorically stated that she has never waived any of her rights. Obviously, the other manner has not occurred yet.

Reproduction
Is plagiarism a violation of the Intellectual Property Code? I submit it is (technically). Under Section 177.1 of the IP Code of the Philippines, one of the economic rights that may be infringed is the right of reproduction (ironic, isn’t it?) with a qualification that it should be the whole work or a substantial portion. If that doesn’t fit in, the legislature saw it fit to add Section 177.7 (Other communication to the public of the work). The all inclusive “other communication” was supposed to fill in the gaps or to be progressive in the law. Therefore, plagiarism is a violation of the copyright law.  

Takedown
Is anything posted in the Internet public domain? We all know that it is not. I am sure that most of you have seen a video or music taken down by either Facebook or YouTube. Suffice it to say, these companies respect and follow the law on copyright. Of course, the abovementioned companies do not check each and every work that is uploaded. There must be a notice of takedown by the copyright owner (I have done this before with great success). There have been many (noteworthy and notorious) cases filed by the Recording Industry Association of America on illegal downloading of copyrighted material.

Copyright in Government
Now that we have shot down both affirmative defenses, only one is left. The staff of the Senator likewise claimed that the Government is exempt from committing copyright infringement. Perhaps, there has been a misreading of the law. Section 176 of the IP Code states that NO copyright shall subsist in any work of the Government of the Philippines. It doesn’t state no copyright infringement, just no copyright. Which means, we can all plagiarise any speech by a Senator acting in official duties, such as a privilege speech.

Constitutional Immunity
Now for the truly sad part, even if we can prove plagiarism was committed (admitted), the Senator and his staff will get off the hook. First, it was a privilege speech. In the 1987 Constitution, under Section 11 of Article VI, no member of Congress (sic) shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. Since the “reproduction” or “other communication of the work” was performed by a member of the Senate, there can be no infringement claim against any of the staff.

Plagiarism is an evil species of copyright infringement that can only be curtailed by legislation (unless you are still in college, where expulsion is the penalty). But if our law making branch of the government execute this intellectually heinous act themselves, do you think they will amend the law? 

Note: Just in case - (All rights reserved)
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Rod Vera is an attorney practicing intellectual property law. You may contact him at Phone: +63.917.884.8372; FAX: +63.2.820.1193; E-Mail: rpv@vera-iplaw.com

Content of this blog artilce is provided for informational purposes only and does not constitute nor become legal advice. For any questions, inquiries and comments, please see the contact information above.


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