Justice del Castillo’s Defenses in the Plagiarism Complaint

(Or — those who don’t know the difference between copyright infringement and plagiarism have no business sitting as justices in the Supreme Court. ) This is based on the news item in the Inquirer, and does not offer any legal conclusion as to whether or not plagiarism had been committed, but merely traverses the common defenses presented by respondents in plagiarism cases.

The quote here of Supreme Court Justice del Castillo’s defenses against the plagiarism complaint filed against him (filed in the SC ethics committee) is based on the Inquirer news story today, “UP profs tell justice to quit for plagiarism”; i haven’t read Justice del Castillo’s pleading (“Answer” or “Reply”) nor the Complaint itself.

Justice del Castillo’s “defenses” are classic excuses of respondents in plagiarism cases – you’ll find them in most if not all plagiarism cases litigated in administrative bodies of the academe – they are, as it were, recurring themes that have become to sound like a broken disc (i was going to say “broken record” of an analog era).

Here are the defences as quoted in the Inquirer:

Quote “Denying the accusation, Del Castillo said that in the decision “there was every intention to attribute all sources, whenever due.”

Quote “ “At no point was there ever any malicious intent to appropriate another’s work as our own,” Del Castillo said in a published statement.

Quote “He also quoted from the Intellectual Property Code of the Philippines, which provides that “any use made of a work for the purpose of any judicial proceedings … shall not constitute infringement of copyright.” Close-quote.

The first and the second (“there was every intention to attribute…” etc. and “At no point was there ever any malicious intent to appropriate…” etc.”) are your “no-intent” excuses or defenses. As everyone knows, lack of intent is not a defense in plagiarism. Furthermore, it is also basic that intent is determined from one’s acts, not from one’s avowals or disavowal. Unless a person is sleepwalking or acting under hypnosis, when a respondent typed up or wrote or copied another person’s work and put it under his/ her name, that act is made with knowledge of what one was doing; there is no such thing as plagiarism by accident or plagiarism by negligence, or plagiarism by failure-to-review-my-assistant’s-work. Alas, those are not defenses. The mere act of putting another person’s work under or in your name is a misrepresentation that that work is yours.

Finally, Justice del Castillo uses a provision in the Intellectual Property Code on works not subject to copyright and the limits of copyright.

As everyone knows, copyright, often referred to as economic rights, is the exclusive right of the author to reproduce or make copies of his/ her work, and make profits thereby. Copyright is infringed when another person makes copies, (by xeroxing, “burning”, downloading, pirating) the author’s work without permission from the author. you can use quotes or parts of the work as subject of review and criticism, but not the entire work, you have to buy or pay for the material if you will download or use it in its entirety unless it’s free or part of the public domain or made available with permission, etc.

In other words, when the Intellectual Property Law exempted “works of government”, such as texts of laws, etc, from copyright, it simply means one can reproduce or make copies of (by xeroxing, etc.) laws, executive orders, bills, Supreme Court decisions, without violating the Intellectual Property Code. In particular, Justice del Castillo quotes a provision on the limits of copyright: there is no copyright infringment of “any use made of a work for the purpose of any judicial proceedings…” . This simply means you can quote part of a work in a judicial proceeding without infringing the copyright of the author. (but when you reproduce the entire book of the author or a substantial part of it, you’ve infringed the author’s copyright). It doesn’t mean however that you can lift or copy paragraphs off another person’s work without quotes and without attribution and put it under your name — when you do that, you are misrepresenting to the world that you wrote those paragraphs.

That’s plagiarism — an entirely different offense. In plagiarism, the respondent steals not just the copies but the creation itself by putting it under his/her name and misrepresenting to the world that the work is his/hers. The proscription against plagiarism is found under the provision on “moral rights” of the Intellectual Property Code (the right of the author to have the work attributed to him/her or in his/her name.)

whenever i ask my students,”Which is the worse violation, copyright infringement or plagiarism?” There is always a chorus: “Ma’am, plagiarism!!!!”. And when i ask why, they know the answer: “Ma’am, in copyright infringement, you’re just stealing the profits of the author; in plagiarism, you’re not just stealing –you are lying, stealing, and, cheating, you are stealing the entire work, you are lying to the public, you are cheating everybody who reads your work, and the person who does this is morally depraved!!!” (well, my students answer this in bits and pieces, it’s a series of questions). And when i ask “And do you know what the penalty for plagiarism is, in the University?” There is a louder chorus: “Ma’am, expulsion!!!!” (in the University, the orientation for freshmen includes a lecture on what happens in cases of plagiarism.)

o, mabuti pa ang mga estudyante ko. In other words, a Supreme Court justice who cannot make a distinction between: 1) making copies of a work, and, 2) copying another person’s work, has no business sitting as justice in the Supreme Court.