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.

Dissenting Opinion

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!