On Privilege Speech, Plagiarism, and Copyright Infringement

[Updated July 22, 2013. Jurisprudence explaining plagiarism and jurisprudence on ideas being not protected by copyright were included. Stand on economic rights infringement was changed. The constitutional basis for Senate member punishment was also included.]

Disclaimer: I am not a member of the bar nor a law student. I have no malicious intent in writing this commentary. I do not wish to attribute a crime or otherwise to any person. I, for one, am against cyberbullying. This exercise is purely academic that we might learn from a specific example.

Last August 13, 2012, Senator Vicente Sotto III delivered his privilege speech, Turno en Contra (Part 1 of 4), against the then Reproductive Health Bill. The speech based on the Record of the Senate can be read here.

He was accused of plagiarizing several paragraphs discussing health risks by using oral contraceptives from the blog, The Healthy Home Economist, of a Sarah. The particular blog post, How “The Pill” Can Harm Your Future Child’s Health, (which was said to be the source) can be read here.

Plagiarism can be defined as: the appropriation of another's literary or artistic manner of expression.

These are the parts from Senator Sotto's speech (parts underlined are similar with Sarah's):

According to Dr. Natasha Campbell-McBride, M.D., the use of the pill also causes severe gut dysbiosis. What is worse, drug induced gut imbalance especially intractable and resistant to treatment either with probiotics or diet change. Gut imbalance brought on through the use of the pill negatively impacts the ability to digest food and absorb nutrients. As a result, even if a woman eats spectacularly well during pregnancy, if she has been taking oral contraceptives for a period of time beforehand, it is highly likely that she and her baby are not reaping the full benefits of all these healthy food as the lack of beneficial flora in her gut preclude this from occurring. 

Pathogenic opportunistic flora that take hold in the gut when the pill is used constantly produce toxic substances which are the by-products of their metabolism. These toxins leak into the woman's bloodstream and they have the potential to cross the placenta. Therefore, gut dysbiosis exposes the fetus to toxins. Not well known is also the fact that the use of the pill depletes zinc in the body. Zinc is called the "intelligence mineral" as it is intimately involved in mental development.

These are the parts from Sarah's blog:

According, to Dr. Natasha Campbell-McBride MD, use of other drugs such as the Pill also cause severe gut dybiosis. What’s worse, drug induced gut imbalance is especially intractable and resistant to treatment either with probiotics or diet change. 

First of all, gut imbalance brought on through use of The Pill negatively impacts the ability to digest food and absorb nutrients. As a result, even if a women eats spectacularly well during pregnancy, if she has been taking oral contraceptives for a period of time beforehand, it is highly likely that she and her baby are not reaping the full benefits of all this healthy food as the lack of beneficial flora in her gut preclude this from occurring.

Not well known is the fact that use of The Pill depletes zinc in the body. Zinc is called “the intelligence mineral” as it is intimately involved in mental development. As a result, it is very important for women who have been using oral contraceptives to wait at least 6 months before becoming pregnant to ensure that zinc levels return to normal as low zinc is associated with lowered IQ and birth defects.

Pathogenic, opportunistic flora that take hold in the gut when The Pill is used constantly produce toxic substances which are the by-products of their metabolism. These toxins leak into the woman’s bloodstream and guess what, they have the potential to cross the placenta! Therefore, gut dysbiosis exposes the fetus to toxins even if the woman never eats anything but organic foods and lives in an environment with no pollutants whatsoever.

The case reached Sarah.

The chief-of-staff of the office of Senator Sotto admitted to the 'lifting' on behalf of their speech writers but defended that they were just also quoting Dr. Natasha Campbell-McBride's book. I have not read the book and so do not know the extent of similarity of the blog from the book.

I find it personally difficult to accept that the speech writers and Sarah, separately quoting a book, would produce very similar statements. 81-96% match after a sentence per sentence comparison using a string similarity test which could be found here.

Plagiarism is not a crime. There is no law that punishes plagiarism per se. There is not even a standard legal definition of plagiarism. The court only borrows the definition from dictionaries or from academic institutions. The court could choose a lax definition or otherwise. The most comprehensive definition I encountered so far is from Harvey which I found in A.M. No. 10-7-17-SC (Sereno, J., dissenting), October 15, 2010:

Forms of Plagiarism
There are many ways by which plagiarism can be committed. For the purpose of this analysis, we used the standard reference book prescribed for Harvard University students, "Writing with Sources" by Gordon Harvey.
Harvey identifies four forms of plagiarism: (a) uncited data or information; (b) an uncited idea, whether a specific claim or general concept; (c) an unquoted but verbatim phrase or passage; and (d) an uncited structure or organizing strategy. He then explains how each form or mode of plagiarism is committed. Plagiarism is committed in mode (a) by "plagiarizing information that is not common knowledge." Mode (b) is committed when "distinctive ideas are plagiarized," "even though you present them in a different order and in different words, because they are uncited."
Even if there has been a prior citation, succeeding appropriations of an idea to make it appear as your own is plagiarism, because the "[previous] citation in [an earlier] passage is a deception." Mode (c) is committed when "you … borrowed several distinctive phrases verbatim, without quotation marks…" Mode (d) is committed when, though the words and details are original, "(y)ou have, however, taken the structural framework or outline directly from the source passage … even though, again, your language differs from your source and your invented examples are original." [emphases supplied]

Aside from the alleged plagiarism, could there be copyright infringement?

Sarah posted the blog on February 23, 2011. The speech was delivered more than a year after. It is safe to assume that the speech was only written a few days before the delivery and never made available to the public prior to that. The Intellectual Property (IP) Code of the Philippines provides:

Section 172. Literary and Artistic Works. - 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 [emphasis supplied]

We presume that Sarah made the blogpost about a year before the speech was written so she is the copyright holder.

We now also know that Senator Sotto did not write the speech all by himself. Should Senator Sotto be responsible for what he did not entirely write? The moment he took the floor and started his speech, it is as if he is the one who made the speech. Senator Sotto, nonetheless, claims responsibility but defended that he said a general disclaimer in the speech itself:

Ginoong Pangulo, hindi po ako nagdudunung-dunungan dito. Hindi ko po iniimbento ito ha. Itong mga kinu-quote ko po dito, mga facts na pinapatotohanan ng mga eksperto sa larangan ng agham at batas. [emphases supplied]

The written speech, however, is confusing on where it is still the Senator's words or the sources by not using quotation marks or blocking. There was also no paraphrasing or correct citation, at least in the case of Sarah. Moreover, the general disclaimer is for the ideas and facts presented. The manner of expression is another thing. The IP Code also provides:

Section 175. Unprotected Subject Matter. - Notwithstanding the provisions of Sections 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. [emphases supplied]

Also explained briefly in Pearl v. Shoemart, G.R. No. 148222, August 15, 2003:

In the oft-cited case of Baker vs. Selden, the United States Supreme Court held that only the expression of an idea is protected by copyright, not the idea itself. [emphases supplied]

There are two types of copyrights. First are the economic rights which enumerates rights of the copyright holder so he can effectively exploit economically his works. The limitations of these rights were also provided:

Section 184. Limitations on Copyright. - 184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:

(b) 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; [emphases supplied]

Second are the moral rights. The IP Code also provides:

Section 193. Scope of Moral Rights. - The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right:

193.1. 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; [emphasis supplied]

On September 5, 2012, Senator Sotto delivered the part four of his Turno en Contra. The speech can be read here.

Another allegation of plagiarism ensues. It was claimed that the closing paragraph of Senator Sotto's speech was copied and translated to Filipino from Robert Kennedy's Day of Affirmation speech which was delivered on June 6, 1966. Kennedy's speech can be read here.

The speech of Senator Sotto reads:

"Ito ang iiwan kong mga salita: Iilan ang magiging dakila sa pagbali ng kasaysayan, subalit bawat isa sa atin ay maaaring kumilos, gaano man kaliit, para ibahin ang takbo ng mga pangyayari. Kapag pinagsama-sama ang ating munting pagkilos, makalilikha tayo ng totalidad na magmamarka sa kabuuan ng kasaysayan ng henerasyong ito. Ang mga hindi-mabilang na iba't ibang galaw ng katapangan at paninindigan ang humuhubog sa kasaysayan ng sangkatauhan. Tuwing naninindigan tayo para sa isang paniniwala, tuwing kumikilos tayo para mapabuti ang buhay ng iba, tuwing nilalabanan natin ang kawalan ng katarungan, nakalilikha tayo ng maliliit na galaw. Kapag nagkasama-sama ang mumunting galaw na mga ito, bubuo ito ng isang malakas na puwersang kayang magpabagsak maging ng pinakamatatag na dingding ng opresyon. Maraming salamat po."

The speech of Robert Kennedy reads:

""Give me a place to stand," said Archimedes, "and I will move the world." These men moved the world, and so can we all. Few will have the greatness to bend history itself, but each of us can work to change a small portion of events, and in the total of all those acts will be written the history of this generation. Thousands of Peace Corps volunteers are making a difference in isolated villages and city slums in dozens of countries. Thousands of unknown men and women in Europe resisted the occupation of the Nazis and many died, but all added to the ultimate strength and freedom of their countries. It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring those ripples build a current which can sweep down the mightiest walls of oppression and resistance."

Senator Sotto defended that it was translated and therefore not plagiarized. In the copyrights perspective, translation is not an automatic defense. The IP Code provides:

Section 177. Copyright or Economic Rights. - Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; [emphases supplied]

Senator Sotto then later added that it was texted to him by a friend and he did not know that it was from another speech.

Remedies for copyright infringement include filing of criminal case as well as civil action. Could Senator Sotto be criminally or civilly liable? I do not think so. Article VI of the 1987 Constitution of the Republic of The Philippines provides:

Section 11. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

Senator Sotto as a representative of the people is privileged. In Osmeña, Jr. v. Pendatun, G.R. No. L-17144, October 28, 1960:

Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democratic world. As old as the English Parliament, its purpose "is to enable and encourage a representative of the public to discharge his public trust with firmness and success" for "it is indispensably necessary that he should enjoy the fullest liberty of speech and that he should be protected from resentment of every one, however, powerful, to whom the exercise of that liberty may occasion offense."

The only recourse is the disciplining of his fellow senators if someone would pursue this. Article VI of the Constitution also provides:

Section 16. Paragraph 3. Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.

 Also, the Rules of the Senate provides:

Section 97. Upon the recommendation of the Committee on Ethics and Privileges, the Senate may punish any Member for disorderly behavior and, with the concurrence of two-thirds (2/3) of the entire membership, suspend or expel a Member. A penalty of suspension shall not exceed sixty (60) calendar days.