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.
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)
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.
