Plagiarism vs. Infringement

I’m sure you all know the recent issue on plagiarism which got the outrage of photographers and non-photographers alike, including University of the Philippines President, where Mark Joseph Tajo Solis was an alumnus. Mark Joseph Solis, has submitted somebody else’s work to Smiles of the World Photo Contest organized by The Embassy of Chile in the Philippines. Said photo belongs to Gregory John Smith, a Brazil-based social entrepreneur and founder of Children at Risk Foundation. The story is so big it was even picked up by FStoppers & PetaPixel, two well-known photography portal in the world!

In the midst of all this Gregory John Smith appreciates the support he got from Filipinos and even wrote in his Facebook account that he “would honestly like to see this rather negative situation regarding Solis turned round into something good.”

Anyway, much has been written on the issue and I won’t discuss any further. Instead, I sought the help of Atty. Rod Vera to shed light on the matter. Am glad that he agreed on my request and here’s our short Q&A:

How is visual plagiarism different from literary plagiarism?

The law does not make any distinction. If there are private organizations such as schools, publishing organizations, media companies, they may have their internal rules to define such. All the law says that “copying” no matter how small is considered infringement.

How is plagiarism different from copyright infringement?

This should have been the first question. Legally speaking, plagiarism is either a form of infringement or inherent in infringement. For example (pardon the degree), assault or physical injuries is inherent in murder. So, you don’t charge physical injuries resulting to murder, you just file murder. If you ask how are they different, they are not different but they are not totally one and the same. Maybe you can say that plagiarism in an academic sense is not citing the work quoted to an author. I believe that the media is using a misnomer when they use “plagiarism” to cite what Solis did. That was total infringement.

It seems that plagiarism is almost related to Appropriation Art which practice is still not widely accepted and remains to be very controversial nowadays. What are your thoughts on this?

Appropriation art is bordering on the idea-expression dichotomy. That principle states that ideas are NOT protected, only the expression of the idea is. In relation to Richard Prince, the Courts in the US ruled that Richard Prince sufficiently transformed the original images and therefore made a permitted use. This is case law, wherein judges can make changes to the laws in relation to the case. Using the idea-expression dichotomy, I interpret the decision to mean that Richard Prince just copied the idea of the photos of Patrick Cariou and made them his own. That is why the judge said there was sufficient transformation. There was enough original creativity in the new work to make it separate from Cariou’s work. In case of Mark Solis, he PASSED IT OFF as his own. It wasn’t art but unjust appropriation.

Is plagiarism a crime or moral/ ethical offense or both? If so, what are legal remedies and its penalty (considering that the photo has been lifted from a foreign site and entered into a local contest)?

Touchy subject. I would submit that plagiarism in an academic sense is NOT a crime because of the FAIR USE (Sec. 184 and 185, RA 8293) exemption. But the work “used” must be for the uses cited by the law: criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes. One must remember that the work must be the particular subject of the uses. That means if I were to use your picture of a sunset, my “use” must be about criticising or commenting about your picture rather than sunsets in general. Penalties – for infringement per se (unauthorized use), penalities as follows: Section 217, IP Code of the Philippines (RA 8293)

(a)   Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand pesos (P50,000) to One hundred fifty thousand pesos (P150,000) for the first offense.

(b)   Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from One hundred fifty thousand pesos (P150,000) to Five hundred thousand pesos (P500,000) for the second offense.

(c)   Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from Five hundred thousand pesos (P500,000) to One million five hundred thousand pesos (P1,500,000) for the third and subsequent offenses.

(d)   In all cases, subsidiary imprisonment in cases of insolvency.

Looking at the E-Commerce Act (which is more appropriate for downloading from the Internet) (Section 32, RA 8792)

(b) Piracy or the unauthorized copying, reproduction, dissemination, or distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recording or phonograms or information material on protected works, through the use of telecommunication networks, such as, but not limited to, the internet, in a manner that infringes intellectual property rights shall be punished by a minimum fine of One Hundred Thousand pesos (P 100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years.

What is your opinion on the Mark Joseph Solis’ issue?

It was downright infringement. I think what he did was totally unacceptable. This is why we have copyright laws. Problem is, the Brazilian owner of the photo must come here to file the infringement case. The IP office can’t intervene neither can our courts unless a case is filed. And only the owner of the original photograph can sue Mark Solis.

Any final words?

We should stop using plagiarism to connote actual infringement. Both are wrong but if we keep using “plagiarism” we are lessening the impact of unauthorized use of protected works.

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Atty. Rod Vera is an Experienced Intellectual Property litigator and a professor at the Polytechnic University of the Philippines College of Law. Visit his blog on Intellectual Property and he also writes for ManilaSpeak.com.

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