Monday, April 12, 2010


By Obiter 07

Nothing could be more embarrassing, to be a titan of industry as well university board member and use the words of another without attribution and worse, to be found out.  Worst of all, to commit the plagiarism in a commencement speech at a university.  Legally speaking (as contrasted to a less than legal speech in this case), what law if, any, is possibly violated by plagiarism?

Protected Literary and Artistic Works

Under the Intellectual Property Code (Republic Act No. 8293), even lectures and speeches are protected from the moment of their creation.  Needless to say, only original speeches are protected by the law. 

Literary and artistic works are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular:

a)      Books, pamphlets, articles and other writings;
b)      Periodicals and newspapers;
c)      Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;
d)     Letters; xxx
e)      Other literary, scholarly, scientific and artistic works.

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. [1]

Economic Rights

An author enjoys certain economic rights over his creation as follows:

Subject to the provisions of Chapter VIII of the Code, copyright or economic rights consist of the exclusive right to carry out, authorize or prevent the following acts:

1)      Reproduction of the work or substantial portion of the work;
2)      Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;
3)      The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
4)      Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)
5)      Public display of the original or a copy of the work;
6)      Public performance of the work; and
7)      Other communication to the public of the work. [2]

Moral Rights

Apart from economic rights, an author has certain moral rights as well. The author of a work shall, independently of the economic rights in Section 177 (mentioned above) or the grant of an assignment or license with respect to such right, have the right:

1)      To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;
2)      To make any alterations of his work prior to, or to withhold it from publication;
3)      To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and
4)      To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. [3]

Fair Use

The defense of fair use may be available but only if there is at least attribution to the original author. If using another’s words, the least one can do is to acknowledge it. There is no infringement of copyright in 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.[4]


If a copyright holder’s economic or moral rights have been violated as action for injunction to restrain the same, and for damages, among other forms of relief, are available.

Any person infringing a right protected under this law shall be liable:

a)      To an injunction restraining such infringement. The court may also order the defendant to desist from an infringement, among others, to prevent the entry into the channels of commerce of imported goods that involve an infringement, immediately after customs clearance of such goods.
b)      Pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to the infringement as well as the profits the infringer may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall appear to be just and shall not be regarded as penalty.
c)      Deliver under oath, for impounding during the pendency of the action, upon such terms and conditions as the court may prescribe, sales invoices and other documents evidencing sales, all articles and their packaging alleged to infringe a copyright and implements for making them.
d)     Deliver under oath for destruction without any compensation all infringing copies or devices, as well as all plates, molds, or other means for making such infringing copies as the court may order.
e)      Such other terms and conditions, including the payment of moral and exemplary damages, which the court may deem proper, wise and equitable and the destruction of infringing copies of the work even in the event of acquittal in a criminal case.

In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings.[5]

Criminal Liability

Criminal liability might likewise attach and be imposed on the infringer.  Any person infringing or aiding or abetting such infringement shall be guilty of a crime punishable by:

a)      Imprisonment of 1 year to 3 years plus a fine ranging from P50,000- P150,000 for the first offense.
b)      Imprisonment of 3 years and 1 day to 6 years plus a fine ranging from P150,000 - P500,000 for the second offense.
c)      Imprisonment of 6 years and 1 day to 9 years plus a fine ranging from P500,000) to P1,500,000 for the third and subsequent offenses.
d)     In all cases, subsidiary imprisonment in cases of insolvency.[6]

Civil Liability

The author or his heirs may be be entitled to damages.  Violation of any of the rights conferred under the Code entitle those charged with their enforcement to the same rights and remedies available to a copyright owner.  In addition, damages which may be availed of under the Civil Code may also be recovered. Any damage recovered after the creator's death shall be held in trust for and remitted to his heirs, and in default of the heirs, shall belong to the government.[7]

Decided Case

In UNIVERSITY OF THE PHILIPPINES BOARD OF REGENTS, et al. vs. COURT OF APPEALS, et al. [G.R. No. 134625.  August 31, 1999], the Supreme Court upheld a university’s power to withdraw a doctorate agree it had awarded based on a finding of plagiarism.   

With respect to the injury that a copyright owner must suffer in order for an infringement action to prosper, the Supreme Court ruled that it “does not necessarily require that the entire copyrighted work, or even a large portion of it, be copied. If so much is taken that the value of the original work is substantially diminished, there is an infringement of copyright and to an injurious extent, the work is appropriated. In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute piracy. The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its gravity by an appropriate understanding thereof. Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright.” [HABANA, et al.vs. ROBLES, et al. [G.R. No. 131522.  July 19, 1999.]

Apart from the legal issues, what may matter more is how we respond to such cases of intellectual dishonesty, whether inadvertent or premeditated.  There are reports that students of the same university where the plagiarizing speaker made his commencement speech have been prevented from graduating.  Fair enough.  But the speaker/titan/board member’s tender of resignation from the university board has not yet been accepted.  Why the delay?  If any of the plagiarizing students, say, donated a building to the university would he/she be allowed to graduate then?  Shouldn’t there be the same standards for students as well as alumni, no matter how well-placed or successful? 

For those who were about to graduate and to whom the speeches were delivered, they certainly deserved more than what they heard.  In the end, the lesson for them may be that values can never be transactional, that they are constant and upheld in every instance, or should be, even when no one is looking.

[1]  Section 172.1
[2]   Section 177
[3]  Section 193
[4]  Section 184.1, as amended by
[5]  Section 216.
[6]  Section 217
[7]  Section 199


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