The Committee on Justice in the House of Representatives just found the impeachment complaint against Justice Del Castillo as “sufficient in grounds”. The complaint is based on allegations of plagiarism and misrepresentation. Necessarily, they are forms of disrespect to intellectual property rights. Let us analyze if indeed these charges are worthy of an impeachment.
Private Rights
Intellectual property rights are protected by the government through laws such as the Intellectual Property Code (R.A. 8293). This codification is a blend of all related intellectual property laws so that they are all in one neat package. Violations of Intellectual Property Rights (IPR) are accorded civil damages and penalties including fines and/or jail time. Hence, they are both criminal and civil in nature. But the most important facet in the protection of IPR is that those rights are PRIVATE. Meaning, only the owner(s) of the IPR, in this instance, the copyright owner is the only one that can “complain” or seek redress for the violations of these rights. Justice Del Castillo is accused of misquoting or paraphrasing passages from the works of Evan J. Criddle and Evan Fox-Decent, Christian J. Tams, and Mark Ellis without citing the aforementioned authors as the sources. Thus, the only real and proper complainants on an allegation of violations of IPR would be the aforementioned foreign authors. The impeachment complaint was filed by Isabela Vinuya, Pilar Galang, Maria Quilanta, Maxima Aregala de la Cruz, Leonor Hernandez Sumiwang. On this angle, impeachment complaint must fail.
Substantial Portion
On the matter of rights as listed in the IP Code, Section 177 provides the copyright or economic rights which can (but should not) be violated. The only pertinent right in this case would be the “Reproduction of the work or substantial portion of the work”. Meaning, the copyright owner shall exercise this right solely unless licensed to others. The important turn of phrase here is “substantial”. Did Justice Del Castillo “copy” a “substantial” portion? This is a question that only the copyright owner can claim. The impeachment complainants have no competence to determine what is substantially copied or not. It is not their work. Also, plagiarism is not listed specifically as violation of the economic rights. Laws must be very specific and clear in what they list as violations. I know all of you know the lines between wholesale copying, substantial copying and plagiarism. The first two are violations, the last one isn’t. . On this angle, again, the impeachment complaint must fail.
Limitation and Exemptions
The IP Code provides “escape” clauses, if you will, for “infringers” (for lack of a better term) to evade persecution, oops, I meant prosecution. Section 184 (h) provides that the Government (here, the judiciary) can make use of a work (even the whole portion) where such use is in the public interest (Comfort women issue) and is compatible with fair use. What is fair use? Fair use is an exemption under the IP Code wherein an “infringer” can use the work (even the whole portion) for comment, criticism and research. A valid “fair use” can be determined by using four factors which will be swung for or against validity. They are:
[a] The form of the use (whether for profit or educational);
[b] Nature of original work (whether same form or not);
[c] Amount and substantially of the portion used (how much was used); and lastly
[d] Effect of the market value of the original work (whether the second use affects the sales of the first work).
One can argue that how Justice Del Castillo used the works of the aforementioned authors can be swung in the direction of allowable fair use. One the first factor alone, whether for profit or not should suffice already. This, of course is an affirmative defense which means, the infringer admits the unauthorized use but claims exemptions provided by law.
Executive Department can now be in estoppel (somewhat)
Estoppel is defined as a bar or impediment preventing a party from asserting a fact or a claim inconsistent with a position that party previously took, either by conduct or words. Now read carefully, Justice Del Castillo is accused of violating IPRs. I have argued that plagiarism is not a listed violation under the law. One can argue that plagiarism is just a disrespect of the copyright. So, is our executive branch of the government concerned about disrespecting copyrights? Apparently not. One cabinet member caught disrespecting copyright by purchasing over forty (40) pirated DVDs is merely given a pinch on the cheek. And this is after admitting to owning several high-powered firearms. Why is the government so concerned about plagiarism but not proliferation of piracy? If they can forgive profit oriented abuse of the copyright, shouldn’t they let go of educational abuse of the same. If they say that purchasing pirated DVDs are not against law thus not punishable, shouldn’t they say the same about plagiarism?
Impeachable Offense
Violations worthy of impeachment should be actions or omissions that result to either culpable violations of the constitution or betrayal of public trust. Certainly, plagiarism is not a violation of constitution. Betrayal of public trust then? I say no. First, intellectual property rights are private in nature, thus the “public” cannot be made as a complainant nor the affected party. Secondly, plagiarism is not a true violation of the law but if so, there are exemptions granted. Lastly, if the branch of the government forgives a superior or stronger disrespect (yet lawful) of intellectual property rights, they should afford the same to a member of a co-equal branch of the government (Cabinet secretary vs. Associate Justice).
Posted by attyvera 
