CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
28 September 2013
What this fellow from University of the Philippines Diliman Mark Joseph Solis committed, by passing off as his own pictures downloaded from other websites, is sheer and outright despicable, and judging from news reports online, it seems that the Chilean Ambassador may seem to be letting off the hook this rascal easily by asking him to redeem himself by joining the contest again, hopefully by pictures he has already taken, through his own camera, by his own efforts.
This case however is interesting in highlighting the similarity and distinction between plagiarism and copyright infringement, and even the Cultural Center of the Philippines (CCP), in issuing a statement condemning Mark Joseph Solis’s acts, may have thought that the two are similar, since at the close of their statement, the CCP called on the cultural community “to be steadfast in protecting the intellectual property rights of the individual.”
If we ask the Supreme Court what is plagiarism, in the case of In The Matter Of The Charges Of Plagiarism, Etc., Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC, February 8, 2011) the Supreme Court has this to say on it :
Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says Webster, is “to steal and pass off as one’s own” the ideas or words of another. Stealing implies malicious taking. Black’s Law Dictionary, the world’s leading English law dictionary quoted by the Court in its decision, defines plagiarism as the “deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own.”2 The presentation of another person’s ideas as one’s own must be deliberate or premeditated—a taking with ill intent
What we can consider as a take-away from this Supreme Court obiter is that plagiarism is a matter that is not defined by law, but a concern that relates more to intellectual integrity and honesty, something that goes beyond what is set by the law but is more about how institutions, especially academic institutions, inculcate in their students and faculty. The Supreme Court in the case cited even took pains to distinguish the daily acts of judges and lawyers in using or quoting decisions to argue their client’s cases, but that is not our concern in this posting.
So how is plagiarism distinguished from copyright infringement? Plagiarism is not set by law but copyright infringement is.
If we look at our Intellectual Property Code, Republic Act 8293, there are acts there which are NOT considered as copyright infringement :
(a) The recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society; (Sec. 10(1), P.D. No. 49)
(b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned; (Sec. 11, third par., P.D. No. 49)
(c) The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated; (Sec. 11, P.D. No. 49)
(d) The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose; (Sec. 12, P.D. No. 49)
(e) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned;
(f) The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work;
(g) The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;
(h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use;
(i) The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations; (n)
(j) Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that the original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and
(k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.
In addition, there is also a more specific provision (sec. 185.1) in the same Intellectual Property Code which is called FAIR USE, though the previous enumeration are also considered as such fair use : The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright.
But another thing that we need to take into account here is the act of downloading from the internet, which, for all intents and purposes, is something that is not prohibited or considered illegal outright by our Intellectual Property Code, that is why, those who have proprietary content, limit the access to their copyrighted works by putting up what is called “paywalls”, restrictions on further access to their material unless one signs on and subscribes to their content.
Copyright purists however say that another law, or the Electronic Commerce Act of 2000, or Republic Act 8792 has criminalized this by calling this act by the lengthy term “Piracy or the unauthorized copying, reproduction, dissemination, distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recordings or phonograms or information material on protected works, through the use of telecommunication networks, such as, but not limited to, the internet, in a manner that infringes intellectual property rights”.
So, what’s a netizen to do? The important thing to remember is that the most important right out there is the right to fair use, and that should override whatever claims to piracy or unauthorized copying etc. by the copyright holder.
Mark Joseph Solis therefore, may not have committed copyright infringement, considering that the original photographer appears to have forgiven him and have even asked the netizens to move on. But given the outright dishonesty of the said to be poor fellow, which he has done not just once, he has committed more than plagiarism. It is up to the authorities of UP if his acts may have caused undue harm to the reputation of the school and its alumni.