Plagiarism & Copyright Infringement: Do They Apply to Legislative Speeches?

During the legislative debates on the Reproductive Health Bill in the Philippines, a certain Senator delivered a speech containing passages lifted from an American health blog.

The blogger found out about this and accused the Senator and his staff of plagiarism and copyright infringement.

So what is plagiarism? What is copyright infringement? Allow me to repost an old guide for you here: 

Plagiarism is the use of another person's work without proper citation or credit. Copyright infringement, on the other hand, is the use of another person's copyright-protected work without permission.

In this particular case, the Senator and his staff failed to do both. They did not cite their sources and they did not obtain permission to use the blogger's original post, which is still protected by copyright. 

So does the Senator have a good excuse for doing this?

Under the Intellectual Property Code of the Philippines (Republic Act No. 8293), the best defense against copyright infringement is Fair Use: 

Section 185. Fair Use of a Copyrighted Work. - 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. 

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In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include: 

(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work.

On the count of copyright infringement, I believe the Senator was able to exercise fair use when he included the blogger's work in his speech because:

a) The use was for a public purpose; 

b) the nature of the copyrighted work consisted of scientific data and analyses relevant to the public interest; 

c) the amount of the work used may be significant but by nature, data was taken as a whole; and

d) There was no apparent damage to the business or reputation of the blogger.

Having said that, the Senator still stands guilty of plagiarism. He failed to cite his sources and breached a very simple academic and professional precept. 

But who can punish the Senator? Plagiarism, being a professional and ethical offense is beyond the powers of any civil or criminal court in the Philippines. 

The only bodies that may be able to punish the Senator for plagiarism are: 

1) The Senate (can discipline its members); 

2) His Alma Mater (may revoke his degree); and

3) Any professional organization that he is a part of (may revoke his membership or discipline him). 

Outside of these bodies, the public can only respond through media and through their 2013 votes (the Senator is up for re-election) if they feel strongly enough about the plagiarism issue.

In any case, this is not so much a legal matter as it is a professional one. There is great shame in failing to acknowledge your sources in professional and academic circles. In legislative bodies, however, I know that this is not the first time this has happened. But for some reason, people are taking notice this time. 

Optimistically, this is can be seen as an increased demand for government accountability.

Pessimistically, this is just another lobbying tactic to steer attention away from the real debate.

Finally, this whole issue has nothing to do with the medium being used. Works on the Internet are NOT automatically part of the public domain, contrary to popular misunderstanding. All original works are protected by copyright in whatever shape or form they take, subject to very limited exceptions. Remember that the public domain is composed of works with expired copyrights and those that were never protected by copyright. Thus, it consists mostly of very old works of art and literature. Not blog entries.

Is Human Rights Your Business?

"For the past 33 years, I have looked in the mirror every morning and asked myself: 'If today were the last day of my life, would I want to do what I am about to do today?' And whenever the answer has been 'No' for too many days in a row, I know I need to change something." 

- Steve Jobs

I remember back in law school when a commercial law professor told us that a corporation had no obligation other than to make a profit for its shareholders. I was not persuaded then and I strongly oppose the view now.

Profitability might be measured by dollars and cents but getting to the bottom line is more complicated than that. A company may make millions in a few short years while depleting the resources necessary for its business operations, grabbing a quick buck while leaving communities damaged forever. Industries like mining, gas and lumber have learned this the hard way and few corrections have been made thus far. But if you were to look deeper into the future, you may understand how protecting and preserving communities and their environment will yield long-term, sustainable and meaningful wealth for the company and all its stakeholders (not just its stockholders).

So why do businesses need to protect human rights? Professor John Ruggie of Harvard’s Kennedy School of Government laid down a deceptively simple answer known as the ‘Protect, Respect and Remedy Framework’. This was adopted by the UN Human Rights Council as its ‘Guiding Principles on Business and Human Rights’. The framework highlights three things:

1. States’ existing obligations to respect, protect and fulfill human rights and fundamental freedoms; 
2. The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights;
3. The need for rights and obligations to be matched to appropriate and effective remedies when breached.   

The elegance of this framework is that it creates no new laws, rights or obligations. It simply combines existing international law and shared general principles to guide us on how to conduct business responsibly.

Forget about Corporate Social Responsibility (CSR) programs, foundations and charities. These are all good and noble but they are always voluntary. Even worse, they have sometimes been used merely as vehicles for tax cuts and good publicity. CSR programs have been abused as a way for the left corporate hand to give publicly while the right hand takes away much more in private. Money spent giving scholarships to a few poor children might have been taken from funds withheld from the company’s laborers, denying them a fair living wage.

The Ruggie Principles hold businesses accountable for all its activities. It does not care about how you spend corporate money for philanthropy but how the business makes money in the first place. With what I like to call ‘Due Diligence Plus’, one is able to monitor basic human rights concerns like labor practices of a company or the environmental impact caused by its business operations. These factors are not limited by local laws but should conform to international standards of human rights protection. 

Now, this is not voluntary.

These principles have also been echoed under the ‘Guidelines for Multinational Enterprises’ of the Organization for Economic Cooperation and Development (OECD), in the human rights chapter of the ‘Guidance on Social Responsibility’ from the International Organization for Standardization (ISO 26000), and in the revised ‘Sustainability Framework and Performance Standards’ of the International Finance Corporation (IFC) and are quickly becoming the international gold standard for responsible business.

Businesses are powerful movers of society. They can influence policies, win elections and destroy regimes. Businesses create wealth that can either build great opportunities or attract great evil. This time, we must hold them truly accountable under the toughest human rights standards. 

The quicker we learn these principles and adopt them, the quicker we eliminate child labor, human trafficking, war profiteering, environmental damage, displacement of local communities, corruption and unbridled greed. These things are stoppable. I believe this generation has an opportunity to do so.

Read Professor Ruggie's Report here.