Plagiarists are contraceptives (How a Senator arguing against contraceptives becomes one)

By Siesta-friendly

Okay, so far we’ve had 3 notorious incidents of plagiarism (the previous two we’ve  tackled in 2 posts: EATING YOUR OWN WORDS (Plagiarism) and By Your Own Hand or Not, who cares? (When Plagiarism isn’t Plagiarism according to the Supreme Court). These acts of plagiarism were attributed (pun intended) to society’s leaders no less: business leader and then Chairman of the Ateneo University Board of Trustees Manuel Pangilinan, Supreme Court Justice Mariano Del Castillo (also an Ateneo graduate), and now Senator Vicente “Tito” Sotto III (we have yet to find out who among his staff is from Ateneo from where his speech writer/s graduated).  

It doesn’t help anti-plagiarists (which we should all be) that the Supreme Court, in In The Matter Of The Charges Of Plagiarism, Etc., Against Associate Justice Mariano C. Del Castillo, cleared Justice Del Castillo of plagiarism.  The SC compounds the problem by including intent (not universally required but often used as a defense) as an element of plagiarism when it stated that “plagiarism is essentially a form of fraud where intent to deceive is inherent”[1] Neither is Congress helping by failing to as yet impeach Justice Del Castillo for plagiarism. It is not far-fetched to assume that these actions (or non-actions) have further left the impression on the public – used to buying pirated dvds - that it’s really not that big a deal to take from other people’s works without giving due credit.

Perhaps this is why we now have the 3^rd infamous case of plagiarism.

The Law on Copyright

The most recent allegations of plagiarism involve Sen. Tito Sotto, and to date, 5 blogs and 1 briefing paper. Details of the alleged liftings can be found in Raissa Robles’ blog posts “Did Sen. Sotto copy from 5 bloggers?”[2]  and “UPDATE: Senator Sotto lifted from 5 bloggers and 1 briefing paper[3]

Not only were the lines taken without due credit, but the office of Sen. Sotto, through his Chief of Staff, Atty. Hector A. Villacorta, defends their acts as follows:

“Blog site is public domain, you should be open to be quoted from all over the world. What law did we violate only her sensitivity was.  Because there is no crime, we used information from public domain they're making issue of the way it was quoted."

"The rule of copyright gives government a chance to use some of materials. There's principle in law if there's a crime there should be a law punishing it. Was she commercially injured? Wala naman eh. No crime, no law violated."

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"Blogs are public domain. Anybody can use it [sic]. Government is exempted from the copyright rule. As a general principle, you cannot withhold information from government,"

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"Bloggers, beware what you put out on the web. You should not cry if used by the web,".[4]

These are reckless statements. We daresay that the office of the Senator and his lawyer-Chief of Staff will fail the challenge of finding legal bases to back their claims that 1) "Blogs are public domain”, 2) “Government is exempted from the copyright rule”, 3) that they did not violate any law, 4) that only the author’s sensitivity was violated, and 5) that plagiarism requires commercial injury to the author.   

Surrounded by laws and law-making being part of their daily functions, one would think they would be the first to know what’s legal or not.  How can a legislator and his staff - of all people - forget that the Philippines is signatory to different international conventions on intellectual property including: the Berne Convention for the Protection of Literary and Artistic Works, (September 9, 1886), and the WIPO Copyright Treaty, (December 20, 1996)?

Blogs are protected by copyright laws

Even a high school student would know that blog articles are copyrighted work and should be duly credited when copied. Section 172.1, Chapter II (Copyright Original Works), Part IV (The Law on Copyright), of the Intellectual Property Code[5] states:

172.1.    Literary and artistic works, hereinafter referred to as "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;

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(o)    Other literary, scholarly, scientific and artistic works. 

while Chapter III (Derivative Works)  Section 173.1 states that the following are protected by copyright: 

(a)                Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and 

(b)               Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents. (Sec. 2, [P] and [Q], P.D. No. 49) 

Thus, a blog is a literary work clearly covered by copyright.  The law makes no description where the writings/works are made – be they on tissue paper or stone or web log. 

Atty. Villacorta finally admits laziness in explaining why they chose to copy a blog post which quoted a book instead of reading the book itself and citing it -

“… Researchers tried clicking the book but ayaw mag download. Kaya ang pinakamaganda, refer to blog dahil baka accurate naman,” Villacorta said.”[6]

Public Domain has specific meaning when it comes to copyright

It seems that the Senator’s lawyer-Chief of Staff mistakes public domain with out-in-public.  Works in the public domain do not have private ownership while works out-in-public are not necessarily without private ownership.  For one to declare that a work is in public domain, one must have already researched that the work no longer has private ownership, like a work whose copyright has lapsed (like Shakespeare’s works).  For one to declare outright that just because an author’s work is contained in a blog it has become part of the public domain, is ignorance - excusable coming from a pre-schooler, but from a Senator and his lawyer-Chief of Staff?

Of course, Atty. Villacorta’s excuses still don’t explain the un-credited lifting from a briefing paper. Perhaps he has already decided that a briefing paper - because it can also be found on the internet like a blog - is also in the public domain?  

No copyright in any government work

Atty Villacorta shows his lack of knowledge of copyright law when he justifies their acts of appropriating other people’s works because he claims it is common practice in Congress to copy bills -

"Kopyahan po to talaga, eh.  Pag natapos ang isang Congress, lahat ng bill na hindi naipasa, kopyahan. Bakit mo iisipin ulit eh nandyan na? A bill not acted upon dies with a Congress. The new Congress senators will find out what can still be revived. Kopyahan po, pero hindi masamang kopyahan,” he said.”[7]

Works of the government are specifically listed as one of the Works Not Protected under  Chapter IV. Works Not Protected, Part IV of of the IP Code) -

CHAPTER IV

WORKS NOT PROTECTED

SEC. 175. Unprotected Subject Matter

       Notwithstanding the provisions of Section 172 and 173, no protection shall extend, under this law, to any idea, procedure, system method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts having the character of mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof. (n) 

Sec. 176. Works of the Government. –

176.1. No copyright shall subsist in any work of the Government of the Philippines.  However, prior approval of the government agency or office wherein the work is created shall be necessary for exploitation of such work for profit.  Such agency or office may, among other things, impose as a condition the payment of royalties. No prior approval or conditions shall be required for the use of any purpose of statutes, rules and regulations, and speeches, lectures, sermons, addresses, and dissertations, pronounced, read or rendered in courts of justice, before administrative agencies, in deliberative assemblies and in meetings of public character. (Sec. 9, First Par., P. D. No. 49)  [emphases supplied]

In any case, it is not convincing for the plagiarist to say that he acted in good faith in lifting a portion from someone else’s work because the plagiarist also makes it appear that the lifted portion is his creation (since he failed to give due credit).  In the cases of Justice Del Castillo and Senator Sotto - the 1^st case involving Manny Pangilinan was satisfactorily ended with his admission, apology and resignation as university board of trustee chairman - it’s very difficult to swallow each good faith excuse for each of the several portions they lifted from several sources. One stolen line may be excusable - although the academic and journalism worlds might find that already one too many - but lifting several lines from several sources and failing to give credit to any one? 

Atty. Villacorta’s excuses imply that their acts of plagiarism only affected the blog writer.  That is incorrect. In plagiarism, theft may have been committed against the author, but fraud is committed on the plagiarist’s reader/listener/viewer because the plagiarist misrepresents to his reader/listener/viewer that the work is his.

The Senator and his lawyer–Chief of Staff make light of their actions.  These actions constitute theft and fraud that’s why there are international conventions and local laws prohibiting and punishing intellectual property violations.

Since conception can also be defined as an idea or the act of forming an idea, Senator Sotto is not helping his cause against contraceptives (“contra conception”) by being a contraceptive or contra conception himself.      

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[1]   A.M. No. 10-7-17-SC, October 12, 2010.

[2]  Robles , R. (2012, August 16). Did sen. sotto copy from 5 bloggers?. Retrieved from http://raissarobles.com/2012/08/16/did-sen-sotto-copy-from-4-bloggers/

[3]   Robles, R. (2012, August 17). Update: Senator sotto lifted from 5 bloggers and 1 briefing paper . Retrieved from http://raissarobles.com/2012/08/17/update-senator-sotto-lifted-from-5-bloggers-and-1-briefing-paper/

[4]  Cruz, R. (2012, August 17). Sotto immune from plagiarism raps, top aide says. Retrieved from http://www.abs-cbnnews.com/-depth/08/17/12/sotto-immune-plagiarism-raps-top-aide-says

[5]  Republic Act No. 8293, An Act Prescribing The Intellectual Property Code And Establishing The Intellectual Property Office, Providing For Its Powers And Functions, And For Other Purposes, June 6, 1997.

[6]   Castaneda, J. (2012, August 22). Sotto, staff didn't read mcbride book. Retrieved from http://www.abs-cbnnews.com/-depth/08/22/12/sotto-staff-didnt-read-mcbride-book

[7]  Ibid.

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DYING TO BELONG (Learning from the hazing-death of Lenny Villa and the Anti-Hazing Law)

By Siesta-friendly

The Lenny Villa Case

As far as the law is concerned, our lawmakers learned a lot from the hazing-death of Aqula Legis neophyte Lenny Villa in 1991. The Anti-Hazing Law was enacted 4 years thereafter, in 1995, and criminalized certain activities done during hazing. ^[1] (Hazing, of course, is still perfectly legal.)

The Anti-Hazing Law is necessary as shown by the February 2012 Supreme Court decision on the consolidated cases related to Lenny Villa’s death. The case reminds us of how weak the applicable laws were in 1991.  Of the 35 accused and charged for Lenny’s death, only 5 Aquilans: Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson, have been found “guilty beyond reasonable doubt of reckless imprudence resulting in homicide defined and penalized under Article 365 in relation to Article 249 of the Revised Penal Code”.  Not only that, the 5 were only ordered to serve a maximum term of 4 years and 2 months of prision correccional.^[2]   

As for the other accused: Efren de Leon and Artemio Villareal are already dead; Reynaldo Concepcion, Manuel Escalona II, Crisanto Saruca, Jr., Anselmo Adriano and Marcus Joel Ramos were acquitted for the delay by the Department of Justice in prosecuting the case against them;  19 of the rest: Nelson Victorino, Eulogio Sabban, Joseph Lledo, Etienne Guerrero, Michael Musngi, Jonas Karl Perez, Ronan de Guzman, Paul Angelo Santos, Antonio General, Jaime Maria Flores II, Dalmacio Lim, Jr., Ernesto Jose Montecillo, Santiago Ranada III, Zosimo Mendoza, Vicente Verdadero, Amante Purisima II, Jude Fernandez, Adel Abas, and Percival Brigola were “acquitted, as their individual guilt was not established by proof beyond reasonable doubt.” The case does not detail what’s happened with Florentino Ampil, Enrico de Vera III, Stanley Fernandez and Noel Cabangon.^[3]

The difference between the laws then applicable to hazing and the Anti-Hazing Law shows in said Supreme Court decision -

“In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the Revised Penal Code [on physical injuries], the employment of physical injuries must be coupled with dolus malus [or evil intent]. As an act that is mala in se [or wrong in itself], the existence of malicious intent is fundamental, since injury arises from the mental state of the wrongdoer – iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be found guilty of an intentional felony. Thus, in case of physical injuries under the Revised Penal Code, there must be a specific animus iniuriandi or malicious intention to do wrong against the physical integrity or well-being of a person, so as to incapacitate and deprive the victim of certain bodily functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of inflicting physical injuries per se merely satisfies the elements of freedom and intelligence in an intentional felony. The commission of the act does not, in itself, make a man guilty unless his intentions are.

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Lenny died during Aquila’s fraternity initiation rites. The night before the commencement of the rites, they were briefed on what to expect. They were told that there would be physical beatings, that the whole event would last for three days, and that they could quit anytime. On their first night, they were subjected to “traditional” initiation rites, including the “Indian Run,” “Bicol Express,” “Rounds,” and the “Auxies’ Privilege Round.” The beatings were predominantly directed at the neophytes’ arms and legs.

In the morning of their second day of initiation, they were made to present comic plays and to play rough basketball. They were also required to memorize and recite the Aquila Fraternity’s principles. Late in the afternoon, they were once again subjected to “traditional” initiation rituals. When the rituals were officially reopened on the insistence of Dizon and Villareal, the neophytes were subjected to another “traditional” ritual – paddling by the fraternity.

 During the whole initiation rites, auxiliaries were assigned to the neophytes. The auxiliaries protected the neophytes by functioning as human barriers and shielding them from those who were designated to inflict physical and psychological pain on the initiates. It was their regular duty to stop foul or excessive physical blows; to help the neophytes to “pump” their legs in order that their blood would circulate; to facilitate a rest interval after every physical activity or “round”; to serve food and water; to tell jokes; to coach the initiates; and to give them whatever they needed.

These rituals were performed with Lenny’s consent. A few days before the “rites,” he asked both his parents for permission to join the Aquila Fraternity. His father knew that Lenny would go through an initiation process and would be gone for three days … 

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Even after going through Aquila’s grueling traditional rituals during the first day, Lenny continued his participation and finished the second day of initiation.

Based on the foregoing contextual background, and absent further proof showing clear malicious intent, we are constrained to rule that the specific animus iniuriandi was not present in this case. Even if the specific acts of punching, kicking, paddling, and other modes of inflicting physical pain were done voluntarily, freely, and with intelligence, thereby satisfying the elements of freedom and intelligence in the felony of physical injuries, the fundamental ingredient of criminal intent was not proven beyond reasonable doubt. On the contrary, all that was proven was that the acts were done pursuant to tradition. Although the additional “rounds” on the second night were held upon the insistence of Villareal and Dizon, the initiations were officially reopened with the consent of the head of the initiation rites; and the accused fraternity members still participated in the rituals, including the paddling, which were performed pursuant to tradition. Other than the paddle, no other “weapon” was used to inflict injuries on Lenny. The targeted body parts were predominantly the legs and the arms. The designation of roles, including the role of auxiliaries, which were assigned for the specific purpose of lending assistance to and taking care of the neophytes during the initiation rites, further belied the presence of malicious intent. All those who wished to join the fraternity went through the same process of “traditional” initiation; there is no proof that Lenny Villa was specifically targeted or given a different treatment. We stress that Congress itself recognized that hazing is uniquely different from common crimes. The totality of the circumstances must therefore be taken into consideration.”^[4]

The concerns on the then laws applicable to hazing were addressed by the Anti-Hazing Law which no longer requires malicious intent. The wrongful acts are already deemed criminal by said special law.

Unfortunately, we have not heard of any convictions yet under the Anti-Hazing Law even as there have been numerous hazing victims after the law was enacted in 1995.  The law seems comprehensive enough.  

The Anti-Hazing Law

Hazing, definition

Under the Anti-Hazing Law, hazing is defined as “an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury ... [although t]he physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the Philippines and the Philippine National Police as approved by the Secretary of National Defense and the National Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the Philippine National Police [are not] considered as hazing”. (Section 1)

Hazing, requirements

1.      No hazing or initiation rites in any form or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization 7 days before the conduct of such initiation. The written notice shall indicate: 1) the period of the initiation activities which shall not exceed 3 days, shall include 2) the names of those to be subjected to such activities, and shall further contain 3) an undertaking that no physical violence be employed by anybody during such initiation rites.  (Section 2)  

2.      The head of the school or organization or their representatives must assign at least 2 representatives of the school or organization, as the case may be, to be present during the initiation. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant.  (Section 3)  

Liability for Hazing

Section 4 of the Anti-Hazing Law defines those criminally liable as principals and accomplices.

Criminal Liability

1.      If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals. The person or persons who participated in the hazing shall suffer:  

1)      The penalty of reclusion perpetua (life imprisonment) if death, rape, sodomy or mutilation results there from.  

2)      The penalty of reclusion temporal in its maximum period (17 years, 4 months and 1 day to 20 years) if in consequence of the hazing the victim shall become insane, imbecile, impotent or blind.  

3)      The penalty of reclusion temporal in its medium period (14 years, 8 months and one day to 17 years and 4 months) if in consequence of the hazing the victim shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm or a leg or shall have lost the use of any such member shall have become incapacitated for the activity or work in which he was habitually engaged.  

4)      The penalty of reclusion temporal in its minimum period (12 years and one day to 14 years and 8 months) if in consequence of the hazing the victim shall become deformed or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for more than 90 days.  

5)      The penalty of prison mayor in its maximum period (10 years and one day to 12 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for more than 30 days.  

6)      The penalty of prison mayor in its medium period (8 years and one day to 10 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for 10 days or more, or that the injury sustained shall require medical assistance for the same period.  

7)      The penalty of prison mayor in its minimum period (6 years and one day to 8 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged from 1 to 9 days, or that the injury sustained shall require medical assistance for the same period.  

8)      The penalty of prison correccional in its maximum period (4 years, 2 months and one day to 6 years) if in consequence of the hazing the victim sustained physical injuries which do not prevent him from engaging in his habitual activity or work nor require medical attendance.  

2.      If the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.  

3.      The officers, former officers, or alumni of the organization, group, fraternity or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed shall be liable as principals. A fraternity or sorority's adviser who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring shall be liable as principal.  

The presence of any person during the hazing is prima facie evidence of participation therein as principal unless he prevented the commission of the acts punishable herein.  

Accomplices

The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring shall be punished as accomplices for the acts of hazing committed by the perpetrators.  

Liability of Owners of the Hazing venue

The owner of the place where hazing is conducted shall be liable as an accomplice, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

Administrative Liability

The responsible officials of the school or of the police, military or citizen's army training organization, may impose the appropriate administrative sanctions on the person or the persons charged under this provision even before their conviction. The maximum penalty herein provided shall be imposed in any of the following instances:  

1. when the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join;  
2. when the recruit, neophyte or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting;  
3. when the recruit, neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities, through force, violence, threat or intimidation;  
4. when the hazing is committed outside of the school or institution; or  
5. when the victim is below 12 years of age at the time of the hazing.

The law states that it applies to the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment in the manner above mentioned.  

Lastly, the law specifies that any person charged is not entitled to the mitigating circumstance that there was no intention to commit so grave a wrong.  

Had the Anti-Hazing been in place in 1991, those acquitted of causing Lenny Villa’s death may still be languishing in jail.  (Although, perhaps, had our prosecutors been more diligent in their prosecution of all accused in the death of Lenny Villa, there would at least have been more than 5 convictions - even without the Anti-Hazing Law.)

But why do hazing deaths continue to occur despite the law?  It is significant to note that the Supreme Court decision on the hazing-death of Lenny Villa, as quoted above, recognizes that:  the hazing “rituals were performed with Lenny’s consent” and “even after going through Aquila’s grueling traditional rituals during the first day, Lenny continued his participation and finished the second day of initiation.”

The law cannot prohibit some people from wanting to belong and willing to tolerate certain rituals to be accepted as a member of a group, nor can the law prevent some people’s inclination to violence or abuse.  So at all times, the willing neophyte’s welfare depends on being hazed by a group of non-violent handlers.  But that is never guaranteed.  Since the risk exists that the neophyte will be hazed by a group of people prone to violence by nature, by pressure or some substance, it may be all left to the individual (or the family rearing him/her) to eliminate that risk by declining the membership (or convincing said individual to decline) as early as possible. 

We must see hazing as much more than a legal issue, say, like drugs. It is not enough to stop drug production and trafficking.  People must learn to just say “No.”    Those inclined to join should be aware that certain activities benignly termed as rites of passage may very well lead to funeral rites, of their own.

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[1]  Republic Act No. 8049, “An Act Regulating Hazing And Other Forms Of Initiation Rites In Fraternities, Sororities, And Other Organizations And Providing Penalties Therefor”.

^[2]  Artemio Villareal vs People of the Philippines, G.R. No. 151258; People of the Philippines vs. Court of Appeals, et al., G.R. No. 154954; Fidelito Dizon vs. People of the Philippines, G.R. Nos. 178057 & 178080, Gerarda H. Villa vs. Manuel Lorenzo Escalona II, et al., February 1, 2012.                                                   

[3]  Ibid.

[4]  Ibid.

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