Tuesday, October 19, 2010

Sereno's Dissenting Opinion: Supreme Court Decision Aids Plagiarists and Copyright Violators

The opening paragraphs of Justice Sereno's Dissent from the majority opinion in the recent plagiarism decision of the En Banc A.M. No. 10-7-17-SC contains very chilling predictions about how plagiarists and copyright violators will benefit from the terrible innovation created by the Supreme Court. By making "malicious intent" essential to those crimes Justice Sereno warns that lack of such malicious intent now becomes a strong defense against charges of plagiarism and copyright violation.

IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DELCASTILLO 
What is black can be called “white” but it cannot turn white by the mere calling.  The unfortunate ruling of the majority Decision that no plagiarism was committed stems from its failure to distinguish between the determination of the objective, factual existence of plagiarism in the Vinuya decision[1] and the determination of the liability that results from a finding of plagiarism. Specifically, it made “malicious intent”, which heretofore had not been relevant to a finding of plagiarism, an essential element.
 The majority Decision will thus stand against the overwhelming conventions on what constitutes plagiarism. In doing so, the Decision has created unimaginable problems for Philippine academia, which will from now on have to find a disciplinary response to plagiarism committed by students and researchers on the justification of the majority Decision.
It has also undermined the protection of copyrighted work by making available to plagiarists “lack of malicious intent” as a defense to a charge of violation of copy or economic rights of the copyright owner committed through lack of attribution. Under Section 184 of R.A. 8293 (“An Act Describing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Powers and Functions, and for Other Purposes”), or the Intellectual Property Code of the Philippines, there is no infringement of copyright in the use of another's work in:
(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. (Emphasis supplied)
Because the majority Decision has excused the lack of attribution to the complaining authors in the Vinuya decision to editorial errors and lack of malicious intent to appropriate ─ and that therefore there was no plagiarism ─ lack of intent to infringe copyright in the case of lack of attribution may now also become a defense, rendering the above legal provision meaningless.[2]

Read it all at the Supreme Court Website!  

2 comments:

Anonymous said...

Omniscient UP 37?

The 37 UP deans and professors wrote a strongly-worded statement saying, among others, that the “hopes (of the comfort women were) crushed by a singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land” and that “[i]ts callous disposition, coupled with false sympathy and nonchalance, belies a more alarming lack of concern for even the most basic values of decency and respect.” The statement was posted in the internet and fed to the media – at a time when the SC Ethics Committee was investigating the charges of plagiarism.

Again, when the Court directed the UP deans and professors to show cause why they should not be disciplined for violation of certain provisions of the Code of Professional Responsibility (CPR), their first instinct was to go to the media by calling a press conference, landing them a banner story no less, from the Inquirer.

Among the cited violated provisions by the Court is Rule 13.02 of the CPR which provides that “[a] lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.” The rule is as clear as day.

Pray tell, are the UP deans and professors exempted from this rule – just because they are members of the academe? Are they not covered by the CPR, an annotation of which they themselves produced very recently? Is the UP law academe so infinite so as to immune them from the code of ethics for lawyers? Maybe not.

Dean Jorge Bocobo said...

I do not normally replay to or publish anonymous comments any more. But there are exceptions namely when the reasoning is fair and in earnest search of truth and consensus which this comment seems to be.

To your main points:
(1) do you think all 37 were "parties to the controversy" and so covered by the subjudice rule at the time the Statement was publicized.
(2) do you think that based on international standards as noted by Sereno, that "objective plagiarism" exists in the decision Vinuya v. Romulo.
(3) Assuming it does, who were the parties involved in the controversy addressed by AM10-7-17-SC?
(4) Did not ALL five Ethics Committee members "concur unqualifiedly" with Del Castillo's ponencia and therefore would share in any plagiarism they might find during the ethics investigation?
(5) Would any "reasonable man" perceive a "conflict of interest" on the part of the Committee and indeed of the En Banc? Was it ever conceivable that they could have come to ANY other conclusion when they were judging their own cause?
(6) Whose official ACT is Vinuya v. Romulo anyway, the Pencil (Del Castillo)?, his Pencil Eraser (anonymous Court assistant). Or is it not SCoRP itself?
(7) How would you apply Canon 3 (Impartiality) Section 5 of the New Code of JUDICIAL ethics to the matter of their plagiarism rulings?

Thanks, but please identify yourself at least with an email address...I don't like talking to people with bags over their heads.