Republika ng Pilipinas K A G A W A R A N N G K A T A R U N G A N

Department of Justice Manila

P R E S S R E L E A S E 0 2 O c t o b e r 2 0 1 2

D O J I S S U E S A D V I S O R Y O N P L A G I A R I S M

The Department of Justice ("DOJ") issued Advisory Opinion No. 0 2 , Series of 2012 explaining the meaning of plagiarism in the context of Philippine law and cases.

Consistent with the proactive stand of the D O J , the Advisory Opinion addresses a recurring issue in the criminal justice system and lays out the scope of protection of authors under the country's intellectual property laws and sets out the liabilities for infringers.

"Plagiarism is a concept more understood in academic circles as an offense against academic integrity anathema to the strict standards of originality of scholarly works which members of the academic community subscribe to. However, recent events brought to fore the importance of knowing exactly what plagiarism is and to clarify the misconception that there is no crime of plagiarism under our laws," said Secretary of Justice Leila M . de Lima.

As the Advisory Opinion points out, plagiarism, which the Supreme Court has described as the "deliberate and knowing presentation of another person's original ideas or creative expressions as one's own", if committed under certain circumstances, can amount to criminal violation of the Intellectual Property Code, the E-Commerce Act or the Cybercrime Prevention Act.

The Advisory provides guidance on how to avoid, prevent and resolve plagiarism as it is recognized as an undesirable act that breaches the standards of propriety by depriving another person of the fruits of creativity.

The highlights are as follows:

1. Plagiarism should be avoided, regardless of the presence of

sanctions against it. 2. Cultivate the habit of attribution. When in doubt, cite. 3. Everyone can be a victim of plagiarism. 4. Always be vigilant in detecting cases of plagiarism. 5. Encourage institutions to adopt anti-plagiarism measures.

With this Advisory Opinion, the D O J hopes to continue to build community awareness and increase social trust for a peaceful and just Republic.

Enclosed: Advisory Opinion No. 02 (Series of 2012)

Republika ng Pilipinas K A G A W A R A N N G K A T A R U N G A N

Department of Justice Manila

A D V I S O R Y O P I N I O N N O . 0 2 ( S e r i e s o f 2 0 1 2 ) 18 S e p t e m b e r 2 0 1 2

A D V I S O R Y O N P L A G I A R I S M

1. I N T R O D U C T I O N

This Advisory seeks to clarify the concept of plagiarism in the Phi l ippine legal context and guide concerned parties on the legal implicat ions of such an act.

U p unt i l recently, the concept of plagiarism has only gained currency p r i m a r i l y i n the academic field, where standards for original scholarly work leading to an undergraduate or graduate degree are strictly enforced. However, various events have sparked spirited debates on the nature and extent of plagiarism outside the academe, arising from cases of alleged plagiaristic acts committed by high-ranking public officials.

In the case of In re: Charges of Plagiarism, etc. against Associate Justice Mariano C. Del Castillo, A . M . N o . 10-7-17-SC, 12 October 2010, the Supreme Court cited the lexical definition of plagiarism as ordinari ly understood:

A t its most basic, p lag iar ism means the theft of another person's language, thoughts, or ideas. T o plagiarize, as it is c o m m o n l y understood according to Webster, is "to take (ideas, wri t ings, etc.) f rom (another) a n d pass t h e m off as one's o w n . " The passing off of the work of another as one's o w n is thus an indispensable element of p lagiar ism.

Plagiarism thus refers to the act of appropriating the ideas of another and presenting them as one's own. It is an act of intellectual dishonesty, which assumes more gravity when committed in the context of an activity that puts p r e m i u m precisely on the production of original creative work (e.g., an academic paper, a l iterary or scientific publication, an artistic work, etc.).

L A

However, in the case cited above, the Supreme Court prescribed a standard of plagiarism which requires an element of deliberate intent, based on the definition of plagiarism provided in an oft-cited legal reference material:

Indeed, the 8 t h edit ion of Black's L a w Dic t ionary defines p lag iar i sm as the "deliberate a n d k n o w i n g presentat ion of another person's o r i g i n a l ideas or creative expressions as one's o w n . " Thus , p lag iar i sm presupposes intent a n d a deliberate, conscious effort to steal another's w o r k a n d pass it off as one's o w n .

Therefore, plagiarism, at its core, is a breach of standards of honesty, integrity and justice. It undermines the c o m m o n expectation that credit should be given where it is due, and that one should not appropriate the fruits of another's labor without securing due consent or giving due acknowledgement. However, as the Supreme Court has ruled i n the Del Castillo case, an act of plagiar ism presupposes deliberate intent. If negligence, or good faith/honest mistake can be established, there can be no f inding of plagiarism.

In any case, even as the Supreme Court has prescribed a higher evidentiary threshold for proving the existence of plagiarism, it sti l l remains a fact that plagiarism is an actionable wrongdoing and can even, i n some instances, amount to a cr ime punishable by impr isonment and fine. W h i l e plagiarism per se is not a crime, it w o u l d be inaccurate and misleading to say that "plagiarism is not a cr ime" i n the Phi l ippines , and is a mere transgression of ethical a n d moral standards, because the law actually provides penalties for it.

2 . S U M M A R Y O F T H E L A W

A . Plagiarism under the Intellectual Property Code

The act of plagiarizing the works of another bears the closest affinity to the act of copyright infringement, although, as wi l l be explained below, the two are not synonymous.

Under Section 172.2 of Republ ic Act N o . 8293, otherwise k n o w n as the Intellectual Property Code ("IPC"), l iterary and artistic works "are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose". Such works refer to intellectual creations i n the l iterary and artistic domains which include all forms of creative expression - writings,

musical and dramatic compositions, drawings and il lustrations, plans and sketches, pictures, computer programs and, i n general, all other "literary, scholarly, scientific and artistic works" [Section 172.1, IPC] inc luding works derived from them [Section 173, IPC].

A s to "derivative works" under Section 173 of the IPC, the law protects as "new works" any of the following:

(a) Dramatizat ions , translat ions, adaptations, abridgments , arrangements, a n d other alterations of l i terary o r artist ic works ; a n d

(b) Col lect ions of l iterary, scholarly or artist ic works , and compi lat ions of data a n d other materials w h i c h are or ig ina l by reason of the selection or coordinat ion or arrangement of their contents.

Thus, the protection accorded by intellectual property laws extends to works which have been derived from other works, without prejudice to the latter's subsisting copyright. This means that i f an author creates a work by adapting, abridging, or translating a previous work, or by selecting, coordinating or arranging previously-gathered data, the said author is deemed by law as an original author, and his/her "derived" or "transformed" work w i l l be protected by law as an original creation. T h e f a c t t h a t a n a u t h o r a n c h o r s h i s / h e r w o r k o n t h e w o r k o f a n o t h e r d o e s n o t m e a n t h a t t h e l a w s w i l l p r o v i d e h i m / h e r l e s s p r o t e c t i o n . T r a n s f o r m i n g p r e - e x i s t i n g w o r k s i n a m e a n i n g f u l m a n n e r r e q u i r e s t h e s a m e l e v e l o f o r i g i n a l i t y , c r e a t i v i t y a n d c r i t i c a l t h o u g h t w h i c h t h e I P C o d e e q u a l l y r e c o g n i z e s as w o r t h y o f c o p y r i g h t p r o t e c t i o n .

Thus, under the intellectual property regime i n the country, the general rule is that any literary, scholarly, scientific or artistic work, expressed in whatever form, enjoys the protection of the law from the moment of its creation. The author of an original work enjoys "copyright or economic rights" which , under Section 177 of the IPC, include, among others, the right to c a n y out, prevent, or authorize the reproduction, transformation, publ ic distr ibution, rental, public display, public performance or other public communicat ion of the work. S imply put, an original work is the property of its author, and it can no longer be publicly "recycled" without that author's permission.

In fact, the protection accorded by the law to the author of an original work is so extensive that, even if the said author authorizes its redistribution through assignment or l icensing contracts, he/she still retains "moral rights" over the work. " M o r a l rights", under Section 193 of

the IPC, include, among others, the right to be acknowledged as the author of a work whenever it is publ ic ly used, and the right to object to any distort ion, modification or derogatory action in relation to the author's work, which would prejudice his/her honor or reputation.

In sum, the law respects a n d values the fact of authorship of original works. Plagiarism undermines the protection accorded by intellectual property laws to authors because its effect is the unauthorized appropriation of an original idea and its subsequent presentation as the plagiarist's own. However, p l a g i a r i s m per se is not punishable as a crime under the I P C unless it also amounts to c o p y r i g h t i n f r i n g e m e n t . The two acts are distinct because, among others:

1. Copyright has a l imited t e r m of protection, i.e., dur ing the life of the author and for fifty (50) years after his/her death. After this term, the original work is deemed to have entered the "public d o m a i n " and can already be freely used by anyone. There is no such term l imitat ion for plagiar ism.

A helpful example can be derived from the i l lustration drawn by Professor M i c h a e l Rawson for the members of the Amer ican Histor ica l Associat ion 1 :

If a person, for example, r e p u b l i s h e s a v o l u m e o f George Bancroft 's n i n e t e e n t h - c e n t u r y classie History of the United States of America a n d c l a i m s to he the a u t h o r , he o r she c o m m i t s p l a g i a r i s m hut not copyright i n f r i n g e m e n t , s ince the c o p y r i g h t e x p i r e d m a n y years ago. The i n d i v i d u a l w o u l d suffer the c o n d e m n a t i o n of the historical profession, a n d may have c o m m i t t e d fraud, but w o u l d not have b r o k e n any copyright laws. If a person, however, i n c o r p o r a t e s a n e n t i r e c h a p t e r o f a m o r e recent h i s t o r i c a l w o r k into a n e w b o o k w i t h o u t the p e r m i s s i o n o f the copyright h o l d e r , the p e r s o n is not guilty o f p l a g i a r i s m i f he o r she cites the s o u r c e . B u t the p e r s o n does infringe o n the o r i g i n a l a u t h o r ' s copyright, whether or not the wronged author is properly credited. [Emphasis supplied]

Thus, even i f plagiarism is committed, there is no copyright infringement if the copyright of the work has already expired and there is no longer any legal ground to enforce the copyright

1 M i c h a e l R a w s o n , P L A G I A R I S M : C U R R I C U L A R M A T E R I A L S F O R H I S T O R Y I N S T R U C T O R S , ava i lab le U R L : < h t t p : / / v \ r w w . h i s t o r i a n s . o r g / g o v e r n a n c e / p d / c u r r i c i i l u m / p l a g i a r i s m d e f i n i n g . h t m > (last accessed 18 S e p t e m b e r 2012) .

of the original author. Conversely, even i f there is no plagiarism because there was no undue c laim of authorship, copyright infringement wi l l st i l l be committed if the work was reproduced without the authority of the copyright holder.

Plagiarism per se refers merely to the passing off of another person's work as one's own. Whenever this misrepresentation is committed, plagiarism has already been committed as well . The IPC, on the other hand, provides for various exempting circumstances that would absolve any person f rom a charge of copyright infringement. A m o n g others, the l imitations to copyright protection under the IPC are:

a. A n "idea, procedure, system, method or operation, concept, principle, discovery or mere data as such" is not protected by copyright. F o r example, i n the case of Joaquin v. Drilon, G.R. N o . 108946, 28 January 1999, the Supreme Court has ruled that the mere format and concept of a dating game show is not copyrightable. Thus, i f another person decides to produce another dating game show, he/she cannot be held liable for copyright infringement. However, i f the show itself was reproduced and broadcast without the broadcaster's permission, copyright infringement w i l l have been committed.

b. News of the day and other miscellaneous facts having the character of mere items of press information, as well as any official legislative, administrative or legal text, are not copyrightable.

c. A n y work of the Government of the Phi l ippines (e.g., laws, rules, speeches, lectures, addresses, etc.) is not protected by copyright, but the consent of the concerned government agency shall be secured if a person wishes to use such work for profit.

d. Use of materials i n a manner consistent with Section 184 and the "fair use" doctrine i n Section 185 of the IPC absolves a person from a copyright infringement c laim. Basically, the exemptions provided in these provisions refer to use of materials in a manner that does not undermine the interests of the author, e.g., use for not-for-profit or educational purposes or for mere private

consumption. The over-arching rule is that, whenever applicable, the author and the work are given proper attribution and acknowledgement.

In sum, plagiarism does not i n itself result i n a cr imina l violation, unless it also constitutes copyright infringement under the IPC. There is infringement when any of the copyright or economic rights under Section 177 of the IPC is violated by another person, or when any of the acts i n Section 217.3 a r e committed, and the said violat ion or act cannot be subsumed under any of the l imitat ions or exemptions provided under the same law.

If plagiarism amounts to copyright infringement, the imposable penalty is one to three years of imprisonment and a fine of 5 0 , 0 0 0 to 150,000 pesos for the first offense, three years and one day to six years of imprisonment and a fine of 150,000 to 5 0 0 , 0 0 0 pesos for the second offense, and six years and one day to nine years of imprisonment and a fine of 5 0 0 , 0 0 0 to 1,500,000 pesos for the t h i r d and subsequent offenses.

B. Plagiarism under the E-Commerce Act

If plagiarism is committed i n the form of "online piracy" by using the internet or other telecommunications networks, and the same act constitutes copyright infringement as discussed i n the preceding section, the person committ ing it may also be held cr iminal ly liable under Republic Act N o . 8792 (otherwise k n o w n as the Electronic Commerce Act or "E-Commerce Act") . U n d e r Section 33 (b) of the law:

Piracy or the u n a u t h o r i z e d copying, reproduct ion, d isseminat ion, d i s t r i b u t i o n , i m p o r t a t i o n , use, removal , a lteration, subst i tut ion, modi f icat ion, storage, uploading , d o w n l o a d i n g , c o m m u n i c a t i o n , m a k i n g available to the publ ic , or broadcasting of protected mater ia l , e lectronic s ignature or copyrighted works i n c l u d i n g legally protected s o u n d recordings or phonograms or i n f o r m a t i o n mater ia l on protected works , t h r o u g h the use of t e l e c o m m u n i c a t i o n networks, such as, but not l i m i t e d to, the internet, i n a manner that infringes intel lectual property rights shal l be p u n i s h e d by a m i n i m u m fine of One h u n d r e d t h o u s a n d pesos (Pioo,ooo.oo) and a m a x i m u m commensurate to the damage i n c u r r e d a n d a mandatory i m p r i s o n m e n t of six (6) months to three (3) years

The E-Commerce Act aims to preserve the integrity of channels of information and communicat ions i n the country i n order to facilitate lawful commerce and other economic activities. Thus, it penalizes acts

that use information and communications technology ("ICT") networks to commit cr iminal and other i l l ic i t activities. The provis ion quoted above, Section 33 (b) of the law, focuses on copyright infringement committed online. Thus, in the context of plagiarism, if a person uses the internet to appropriate the intellectual creation of another without attribution (i.e., in the form of "online piracy"), and such appropriat ion amounts to copyright infringement under the IPC, he/she w i l l l ikewise be liable under the E-Commerce Act .

C. Plagiarism under the Cybercrime Prevention Act

Signed into law on 12 September 2012 by President Benigno S. A q u i n o III, Republic Act No. 10175 (otherwise k n o w n as the "Cybercrime Prevention Act" of 2012) seeks to keep ICT networks and facilities free of cr iminal activities. W h i l e the p r i m a r y focus of the Cybercrime Prevention Act is the definition and punishment of specific "cybercrimes" such as cyber-attacks, online fraud, cybersex and c h i l d pornography, it also provides for a general cr iminal l iabi l i ty for al l other violations of the Revised Penal Code and other special penal laws when committed through information a n d communicat ions technologies. Section 6 of the law provides:

A l l crimes defined and penal ized by the Revised Penal Code, as amended, a n d special laws, i f c o m m i t t e d by, t h r o u g h a n d w i t h the use of in format ion a n d c o m m u n i c a t i o n s technologies shal l be covered by the relevant provis ions of this Act : Prov ided, That the penalty to be imposed shal l be one (1) degree higher than that p r o v i d e d for by the Revised Penal Code, as amended, a n d special laws, as the case may be.

Therefore, pursuant to the aforequoted provis ion, if an act of plagiarism amounts to a copyright infringement under the IPC, a special law, then the violator may likewise be held l iable under the Cybercrime Prevention Act i f he/she uses ICT for its commission.

Summariz ing the law, p l a g i a r i s m is p u n i s h a b l e as a c r i m e i f it was committed w i t h d e l i b e r a t e i n t e n t and a m o u n t s t o c o p y r i g h t i n f r i n g e m e n t under the IPC. If copyright infringement was committed, the violator can be h e l d liable under the IPC; i n addit ion, he/she can also be held liable under (1) the C y b e r c r i m e P r e v e n t i o n A c t , i f the plagiarism was committed through an ICT network or facility l ike the internet, and/or (2) the E - C o m m e r c e A c t , i f the plagiarism takes the form of "online piracy" as described i n Section 33 (b) of the law.

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I I I . A D V I S O R Y

Given the above, the following advisory points are issued:

1. P L A G I A R I S M S H O U L D B E A V O I D E D , R E G A R D L E S S O F T H E P R E S E N C E O F S A N C T I O N S A G A I N S T I T .

Plagiarism is, at its core, theft of the intellectual property of another. It is a specie of dishonesty, fraud and lack of integrity. Whi le , under the law, plagiarism per se does not automatically constitute a crime, it is consistent wi th moral and ethical standards for every person to refrain f rom consciously committ ing it. The presence or absence of sanctions against it should not be the determining factor for one's conduct. W e must al l strive to achieve the highest standards of public discourse by ensuring that the ideas we express are products of our own thought, and not merely copied from unwitt ing authors.

2. C U L T I V A T E T H E H A B I T O F A T T R I B U T I O N . W H E N I N D O U B T , C I T E .

W h i l e there is only a specific class of acts which amount to cr iminal ly punishable violations of the IPC, the E-Commerce Act or the Cybercrime Prevention Act, plagiarism should stil l be strongly discouraged in all its forms and regardless of sanctions.

W i t h the proli feration of readily-available and accessible information via the internet and other ICT media, it has become veiy easy to retrieve the same for whatever use or purpose. Without cultivating the habit of attributing sources and original works, persons who routinely access data for their eveiyday use w i l l not develop the discipline of differentiating between their own work and those of another, and at some point w i l l be called out for plagiarism.

Being conscious of properly citing sources, once developed into a habit , is the best protection against charges of plagiarism. Whenever there is doubt that a particular piece of information is already "public knowledge" and requires no attribution, take a cautionary stance and cite. Whenever there is doubt that the use of a material measures up to the standards of "fair use" under the IPC, take the cautionary stance and cite. W h e n i n doubt, cite. Unnecessary or superfluous citation is always better than no citation at all .

3 . E V E R Y O N E C A N B E A V I C T I M O F P L A G I A R I S M .

The generation of original ideas and their expression i n whatever form is the hal lmark of intellectual development. W h i l e plagiarism is mostly committed in an academic setting (especially in the context of violating prescribed citation and style rules), it does not mean that intellectual works exhibited elsewhere enjoy less protection. Thus, everyone can be a v ic t im of plagiarism, for as long as original ideas are committed to a form readily available to the public.

The value attached to the originality of ideas is not d i m i n i s h e d by the fact that such ideas are expressed i n blogs and other less formal social media platforms. A person deliberately appropriat ing them without proper attribution w i l l st i l l be committ ing plagiarism, regardless of the presence or absence of sanctions.

4 . A L W A Y S B E V I G I L A N T I N D E T E C T I N G C A S E S O F P L A G I A R I S M .

In an era of internet-based "cut-and-paste" research and wri t ing, it is very easy to commit plagiarism with impunity . However, i f vigilance is observed i n detecting cases of plagiarism, violators would be held to account and rectify their errors. The vigilance of the public w i l l also create a powerful deterrent effect against potential acts of plagiar ism in the future and apply strong pressure on al l writers and researchers i n the public sphere to adhere to standards of intellectual honesty and integrity.

Teachers and professors have long acquired the ski l l of detecting plagiarism among their students through several "tell-tale" signs like inconsistent word usage, shifting tones, and unusually sophisticated language i n certain passages that stand out vis-a-vis the rest of the text. These same techniques can be used to detect plagiarism i n other settings.

5. E N C O U R A G E I N S T I T U T I O N S T O A D O P T A N T I -P L A G I A R I S M M E A S U R E S .

The value of intellectual honesty and integrity should not be a purely academic concern. Other institutions like private corporations, government offices, societies and associations should be encouraged to adopt anti-plagiarism measures. Even i f not strictly a crime, plagiarism should stil l be viewed as a pernicious act that reflects adversely on the character of a person, i f done deliberately.

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Thus, institutions should consider specifically designating plagiarism as a just cause for discipl inary sanctions. This should apply specifically to institutions whose works and activities are imbued wi th public interest or are highly fiduciary i n nature, and those whose raison d'etre is precisely the generation of original ideas.

Plagiarism should not be tolerated and encouraged in a society which values honesty, diligence and integrity. It should be treated as reprehensible conduct and should not be al lowed to proliferate s imply because no law specifically punishes it as a cr ime per se. At tr ibut ing sources and acknowledging the progeny of original ideas are consistent wi th the standards of morals, ethics and justice that everyone should subscribe to.

This Advisory is issued by the D O J in l ine with its thrust to take a proactive stance and a dynamic approach i n c r i m i n a l justice concerns. A l l are enjoined to disseminate and faithfully observe this Advisory.

Secretary

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Republika ng Pilipinas K A G A W A R A N N G K A T A R U N G A N

Department of Justice Manila

P R E S S R E L E A S E 0 2 O c t o b e r 2 0 1 2

D O J I S S U E S A D V I S O R Y O N P L A G I A R I S M

The Department of Justice ("DOJ") issued Advisory Opinion No. 0 2 , Series of 2012 explaining the meaning of plagiarism in the context of Philippine law and cases.

Consistent with the proactive stand of the DOJ, the Advisory Opinion addresses a recurring issue in the criminal justice system and lays out the scope of protection of authors under the country's intellectual property laws and sets out the liabilities for infringers.

"Plagiarism is a concept more understood in academic circles as an offense against academic integrity anathema to the strict standards of originality of scholarly works which members of the academic community subscribe to. However, recent events brought to fore the importance of knowing exactly what plagiarism is and to clarify the misconception that there is no crime of plagiarism under our laws," said Secretary of Justice Leila M . de Lima.

As the Advisory Opinion points out, plagiarism, which the Supreme Court has described as the "deliberate and knowing presentation of another person's original ideas or creative expressions as one's own", if committed under certain circumstances, can amount to criminal violation of the Intellectual Property Code, the E-Commerce Act or the Cybercrime Prevention Act.

The Advisory provides guidance on how to avoid, prevent and resolve plagiarism as it is recognized as an undesirable act that breaches the standards of propriety by depriving another person of the fruits of creativity.

The highlights are as follows:

1. Plagiarism should be avoided, regardless of the presence of

sanctions against it. 2. Cultivate the habit of attribution. When in doubt, cite. 3. Everyone can be a victim of plagiarism. 4. Always be vigilant in detecting cases of plagiarism. 5. Encourage institutions to adopt anti-plagiarism measures.

With this Advisory Opinion, the D O J hopes to continue to build community awareness and increase social trust for a peaceful and just Republic.

Enclosed: Advisory Opinion No. 02 (Series of 2012)