THESIS STATEMENT: Whether or not the cases of In the Matter of

the Charges of Plagiarism, Etc., Against Associate Justice Mariano C.

del Castillo and Habana v Robles are considered good case laws
I.

Introduction
a. History

Copying has always been part of human society.1 During the

17th century, it was not uncommon for a writer to borrow work from
other writers. By the mid 18th century, plagiarism was more clearly
defined by copyright laws and plagiarists were confronted with
changing public attitudes towards literary property and strong moral
views of literary theft. Opportunities to plagiarize the work of others
have expanded greatly since increased accessibility of the Internet.2
b. The Issue of Plagiarism and Copyright Infringement
at Present
Plagiarism and Copyright Infringement are issues of pressing
concern, for it seems to be increasing in Higher Education in most of
the countries. Due to the advent of technology, copying has been a
very easy task to do. In particular, the Internet allows a person to cut
from a wide range of sources and paste into their own work.3
Plagiarism and Copyright Infringement violate the fundamental
principles of scholarship and the foundations upon which the
academic community rests.4 The issue of plagiarism or improper
attribution poses a threat to the integrity of scholarly writing at
present.
c. Significance of the Issue in the Legal Profession
The practice of law involves a great deal of writing. Lawyers
dedicate most of their time writing memorandum, briefs, legal
opinions and many others. Hence, plagiarism by law practitioners is a
disturbing issue.5
It is said that plagiarism has no place in the practice of law.
Those who copy other peoples work and pass them off as their own

David A. Thomas, How Educators Can More Effectively Understand and Combat The Plagiarism Epidemic,
2004 B.Y.U. EDUC & L.J. 42 (2004) [Journal Online]; available from
http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1191&context=elj ; Internet; accessed 1
March 2014
2
Chris Park, In Other (People's) Words: plagiarism by university students--literature and lessons.
Assessment & Evaluation In Higher Education 28, no. 5 (2003): 471-488. Academic Search Premier,
EBSCOhost; accessed 6 March 2014
3
Ashworth et al., The student lifeworld and the meanings of plagiarism." Journal Of Phenomenological
Psychology 34, no. 2 (Fall2003 2003): 257-278. Academic Search Premier, EBSCOhost accessed 7 March
2014
4
Id. (citing: Guidelines for Faculties on the Avoidance of Plagiarism (Edinburgh University, 1999))
5
Oscar Carlo F. Cajucom, Plagiarism within the Legal Profession and Academe, 55 Ateneo L.J. 787 (2010)

1|Page

have no place in the legal profession because the profession requires

integrity.6
II.

Connecting Plagiarism and Copyright Infringement

a. Plagiarism
1. Defining Plagiarism

The word plagiarism is rooted in the Latin terms plagiarius and

plagium which literally means kidnapping. 7 Plagiarism is likened to
theft or stealing. The only difference is that tangible property is
involved in theft while plagiarism involves ideas, which are intangible.
8

Plagiarism is not easy to define. However, the essence of

plagiarism is the passing off of another persons work or ideas as
ones own.9 This concept is similar to the accepted meaning of
plagiarism of the Supreme Court. It uses the definition of Websters
Dictionary of plagiarism which is to steal and pass off as ones own
the ideas or words of another.10 According to the Supreme Court,
intent to deceive is said to be an inherent element of plagiarism.11
The simple definition by the Supreme Court is criticized by
many scholars. Justice Ma. Lourdes Sereno is firm on her stand that
plagiarism involves the act of copying a work and the subsequent
omission in failing to attribute the work to its author.12 However, some
scholars think that adopting the above mentioned definition will
render everyone guilty of plagiarism all the time. 13
Although a variety of definition of plagiarism is available, it is
clear that is a form of academic dishonesty that plagues not only the
higher education but also the legal profession. Plagiarism touches not
only on the matter of originality and thoroughness in research and
scholarship but on the matter of integrity to those producing works of
scholarship.14
6

Sophia Dedace, More schools reject Supreme Court denial of plagiarism, November 9, 2010, available at:
http://www.gmanetwork.com/news/story/205543/news/nation/more-schools-reject-supreme-courtdenial-of-plagiarism; accessed 1 March 2014
7
Thomas, supra note 1
8
Cajucom, supra note 5 (citing Jaime Dursht, Judicial Plagiarism: It may be Fair Use but is it Ethical? (19967) Cardozo Law Review)
9
David E. Sorkin, Practicing Plagiarism, 81 ILL. B.J. 487 (1993) [Journal Online]; available from:
http://ssrn.com/abstract=1100323 ; Internet; accessed 1 March 2014
10
In the Matter of the Charges of Plagiarism, Etc., Against Associate Justice Mariano C. del Castillo, A.M
No. 10-7-17-SC, October 12, 2010 [hereinafter In Re: Plagiarism] (citing Websters New World College
Dictionary 1-31 (3d ed.))
11
Id.
12
Id. (J. Sereno, dissenting opinion) [hereinafter Sereno Dissent] (citing Stuart P. Green, Plagiarism,
Norms, and the Limits of Theft Law: Observations on the Use of Criminal Sanctions in Enforcing
Intellectual Property Rights, 54 HASTINGS L. J. 167, at 173)
13
Thomas, supra note 1
14
Ralph D. Mawdsley, Plagiarism Problems in Higher education, I3 J.C & U.L. 65 (1986) [Journal Online];
available
from:

2|Page

2. Prevalence of Plagiarism
Plagiarism is not a new trend. Copying from other writers is
probably as old as writing itself.15 It is a universal phenomenon, not
strictly restricted to legal writing, but encompassing almost all fields of
life.16
Research and scholarly writing is a laborious endeavor. 17 The
value of a written work greatly depends on the authorities used and
cited. Thus, attribution is a significant task when it comes to writing. 18
However, not all researchers and scholars have the diligence to go
over piles of research materials, take note of relevant authorities and
come up with something original.19
Aside from the struggle to produce a genuine work, researchers
and scholars often lack the ability to cope with the demands of
writing. Writers intentionally or unintentionally resort to copying
another persons work because of the need to meet deadlines. 20
Plagiarism also arises due to the inability of writers to use proper
attribution.21
3. The Price of Plagiarism
Plagiarism is not considered a crime. It is almost never itself
the subject of a lawsuit. It is mostly an administrative matter and the
penalty is paid in the court of popular opinion. 22
Aside from the dishonor attached to the offense, plagiarists
suffer penalties accordingly. Students and professionals may be
penalized, suspended or dismissed.23 Denial of certification or
recognition of achievement to the extent of rescinding degrees may
also be imposed in the academe. Law students in particular, may be

http://heinonline.org/HOL/LandingPage?handle=hein.journals/jcolunly13&div=7&id=&page=; Internet;
accessed 1 March 2014
15
Chris Park, supra note 2
16
Paul Mooney, Plagued by Plagiarism. Chronicle Of Higher Education 52, no. 37 (2006): 69-72. Academic
Search Premier, EBSCOhost; accessed 6 March 2014
17
Cajucom, supra note 5
18
Natalie Cotton, The Competence of Students as Editors of Law Reviews: A Response to Judge Posner
154
U.
PA.
L.
REV.
951,
(2006)
[Journal
Online];
available
from:
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1305&context=penn_law_review; accessed
1 March 2014
19
Cajucom, supra note 5
20
Id. (citing Joe Mirarchi, Plagiarism: What is it? How to Avoid it? And Why?. 4 T.M COOLEY J. PRAC. &
CLINICAL L. 381 (2001))
21
James Cross Giblin, Biography for the 21st Century. School Library Journal 48, no. 2 (2002): 44. MAS
Ultra - School Edition, EBSCOhost; accessed 1 March 2014
22
Cajucom, supra note 5 (citing Roger Billings, Plagiarism in Academia and Beyond: What is the Role of the
Courts?. 38 U.S.F.L REV. 391 (2004))
23
Id.

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denied admission to the bar due to questions about their character or

fitness to practice law. 24
Despite the severity, of the penalty attached to plagiarism,
damage to ones integrity and credibility is still the most painful price
of plagiarism.25
b. Copyright Infringement
1. Defining Copyright
The Intellectual Property Law (RA 8293) governs the Law on
Copyright, Trademark and Patent in the Philippines.26
The World Intellectual Property Organization defines copyright
as the system of legal protection an author enjoys of the form of
expression of ideas.27 However, it is important to note that copyright
does not protect ideas, only how they are expressed.28 There must at
least be some verifiable expression of the intellectual product for it to
succeed in invoking copyright protection.29
The Intellectual Property Law (RA 8293) enumerates fifteen
subjects of Copyright.30 However, this paper will only focus on Sec.
172 (a) which includes books, pamphlets, articles and other writings.
Sec. 172 (a) of RA 8293 protects derivative works that are
composed of and from preexisting or different material. It gives rise to
the question of originality, which simply means that the work is an
independent creation of the author.31 Originality presupposes that the
work must originate from its author, it must not be copied and it must
involve some intellectual effort.32
Sec. 177 of RA 8293 governs the exclusive rights of
copyright.33 Owners are given economic rights to financially benefit
from their work and prevent others from doing so without their
permission. Copyright gives the owner exclusive rights to reproduce
their work, publicly display or perform their work, and create
derivative works.34
2. Infringement of Copyright
24

Sereno Dissent, supra note 12 (citing Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It
Ethical?, 18 CARDOZO L. REV. 1253, at 1))
25
Bermingham et al., Plagiarism in UK law schools: is there a postcode lottery?. Assessment & Evaluation
In Higher Education 35, no. 1 (2010): 1-14. Academic Search Premier, EBSCOhost; accessed 1 March 2014
26
Fr. Ranhilio C. Aquino, Intellectual Property Law (Phoenix Press, Inc., 2006), 1
27
Aquino, supra note 26, 13
28
Narciso M. Aguilar, The Intellectual Property Code Annotated (Central/Print on Demand, 2004), 133
29
Id. (citing: Article 9 (2) of the Agreement on Trade Related Aspects of Intellectual Property Rights of
GATT 994)
30
Rufus Rodriguez, The Intellectual Property Code of the Philippines and Its Implementing Rules and
Regulations (Rex Bookstore, 2002), 119
31
Aquino, supra note 26, 20, 29
32
David Vaver, Intellectual Property Law. Essentials of Canadian Law Series (Irwin Law, 1997), 41
33
Rodriguez, supra note30, 134
34
Aquino, supra note 26 ,65

4|Page

One of the tests to determine copyright infringement is whether

an average lay observer would recognize the alleged copy as having
been appropriated from the copyrighted work on the basis of
similarities rather than of differences.35 However, a detailed
comparison of elements is unnecessary. Rather, it is the overall
appearance or impression that establishes infringement. 36
Intent to infringe is immaterial. The court may find that there
has been copyright infringement whatever may be the reason or no
matter there is lack of intention to infringe.37
3. Limitations to the Rights of Copyright
Reproduction of written works may be permitted provided that
such reproduction does not conflict with a normal exploitation of the
works and does not unreasonably prejudice the legitimate interests of
the author.38
Sec. 184 of RA 8293 enumerates the acts that do not constitute
copyright infringement.39 One of the limitations to the rights of
copyright is fair use. 40 It is defined as a privilege of other than the
owner of the copyright to use the material in a reasonable manner
without consent, notwithstanding the monopoly granted to the owner
of the copyright. 41 It is important to note that publication of others
work and making quotations from a published work does not
constitute infringement of copyright as long as the name of the author
is mentioned. 42
c. Link between Plagiarism and Copyright Infringement
Plagiarism is not synonymous with copyright infringement.
Plagiarism might seem to be the typical act of wrongful copying, but
it does not necessarily constitute a violation of copyright law. 44
43

Plagiarism is an ethical issue while copyright infringement is a

legal issue. The former is defined by research misconduct policies
while the latter is governed by copyright law. Plagiarism includes
material within the public domain while the latter does not. The
35

Peter Rosenberg, Patent Law Fundamentals, Sections on Copyrights (Clark Boardman Callaghan, 1993),
591
36
Neil Boorstyn, Copyright Law, (Lawyers Co-operative Publishing Company, 1981), 293
37
Rosenberg, supra note 35, 591
38
Vicente B. Amador, Copyright Under the Intellectual Property Code (Rex Bookstore, 1998), 8 (citing:
Article 9 (2) of the Berne Paris Convention)
39
Aguilar, supra note, 28 , 146 (citing: Art. 184 of RA 8293)
40
Rodriguez, supra note 30,141 (citing Art. 184 of RA 8293)
41
Aquino, supra note 26 ,98
42
Aguilar, supra note 28 , 146 (citing: Art. 184 (b) of RA 8293)
43
Bermingham et al., supra note 25
44
Ralph D. Mawdsley, THE TANGLED WEB OF PLAGIARISM LITIGATION: SORTING OUT THE LEGAL ISSUES.
Brigham Young University Education & Law Journal [serial online]. June 2009;(2):245-267. (citing: Laurie
Stearns, Copy Wrong: Plagiarism, Process, Property, and the Law, 80 CAL. L. REV. 513, 514 (1992))
Available from: Academic Search Premier, EBSCOhost; accessed 6 March 2014

5|Page

penalty for plagiarism includes dismissals, tainted reputations and the

like while the liability under copyright infringement results in award of
damages.45
The prohibition against plagiarism protects the idea itself, no
matter how it is expressed. On the other hand, copyright protects the
expression of an idea or the exact words of the original author. 46
Plagiarism is committed against the author while copyright
infringement is committed against the copyright holder. 47
The two concepts are distinct in the sense that there are cases
of plagiarism that do not constitute copyright infringement, and vice
versa.48 Plagiarism may or may not give rise to a criminal or civil
action under the copyright law.49 Although there are instances where
copying would not constitute copyright infringement, it does not mean
that plagiarism is not committed. 50
III.

Plagiarism and Copyright Infringement in Action

a. In the Matter of the Charges of Plagiarism, Etc.,
Against Associate Justice Mariano C. del Castillo
1. Factual Background

Isabelita Vinuya et al. filed a petition in the Supreme Court to

ask that the Executive Branch of government be ordered to seek an
official apology and financial remuneration from Japan. They claim
that during World War II, Japanese soldiers raped them and held
them in houses or cells where they were systematically abused.51
Their petition was dismissed by the Supreme Court. However,
they sought the annulment of said decision due to the alleged
irregularity in the writing of the ponencia.52 They claim that the
decision penned by Associate Justice Mariano del Castillo contained
plagiarized portions of three foreign articles specifically, A Fiduciary

45

Cajucom, supra note 5 (citing: Bast & Samuels, Plagiarism and Legal Scholarship in the Age of
Information Sharing: The Need for Intellectual Honesty, 57 CATH. U.L.REV 777, 780 (2008)
46
Isagani Cruz, Is plagiarism a crime?, available at: http://www.philstar.com/education-and-home/201209-13/848455/plagiarism-crime; Internet; accessed 1 March 2014
47
Trinchera T. Cut and Paste Plagiarism: What It Is and What to Do About It. Community & Junior College
Libraries [serial online]. July 2001:5. Available from: Academic Search Premier, EBSCOHost Accessed
March 6, 2014.
48
Cajucom, supra note 5 (citing Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law:
Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 HASTINGS L. J.
167, at 200)
49
Id. (citing: Bast & Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need
for Intellectual Honesty, 57 CATH. U.L.REV 790 (2008)
50
Id.
51
Vinuya et al. v. Executive Secretary Romulo et al., G.R No. 162230, April 28, 2010
52
In Re: Plagiarism, supra note 10

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Theory of Jus Cogens by Ivan Criddle and Evan Fox-Descent;53

Breaking the Silence on Rape as an International Crime by Mark
Ellis;54 Enforcing Erga Omnes Obligations in International Law by
Christian Tams.55
Vinuya et al. claims that Justice del Castillo deliberately
intended to pass off the ideas and works of the foreign authors as his
own. According to them, Justice del Castillo should resign because
his act constitutes dishonesty and misrepresentation, making him
unfit to be part of the Supreme Court.56
2. The Decision of the Supreme Court
The Supreme Court held that non attribution could be construed
as plagiarism unless sufficient explanation is given. In the case at
bar, the explanation offered by Justice del Castillo was considered
enough to exonerate him from any liability. 57
The Court said that the resulting non attribution was brought
about by mere excusable negligence since it was shown that the
legal researcher of Justice del Castillo unintentionally deleted the
missing attributions in the course of drafting the decision
electronically. The Court called it a case of bad footnoting rather than
one of theft or deceit. Based from the facts, it is clear that Justice del
Castillo has no intention to pass off the ideas and words as his own.
There was no misconduct that would warrant disciplinary action on
the part of Justice del Castillo because of absence of malicious intent.
The Supreme Court emphasized that only errors tainted with fraud,
corruption, or malice are subject to disciplinary action. 58
3. Dissent
Justice Ma. Lourdes Sereno joined by Justice Antonio Carpio
and Justice Conchita Carpio-Morales did not agree with the majoritys
view. They express their opinion that Justice Del Castillo had indeed
committed plagiarism in drafting and passing the decision in the
Vinuya case.59
Justice Sereno strongly opposed the majoritys decision holding
that malicious intent is essential in the determination of the existence
53

Id. The Court held that the footnotes from Criddle-Descent article entitled A Fiduciary Theory of Jus
Cogens (2009) were carried into the Vinuya decisions own footnotes but no attribution were made to the
two authors in those footnotes.
54
Id. The Court held that the passages from Mark Ellis article entitled Breaking the Silence: Rape as an
Intentional Crime (2006) was not properly acknowledged in Footnote 65 found in the ponencia of Justice
del Castillo.
55
Id. The Court held that the decision attributed the source of passages lifted from Christian Tamss book
entitled Enforcing Erga Omnes Obligations in International Law (2006). The use of the phrase See
instead of cited in is a case of mere inadvertent slip in attribution.
56
Id.
57
Id.
58
Id.
59
Id.

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of plagiarism. 60 She enumerated 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.61 She posits that
excusing Justice del Castillo because of lack of malicious intent will
render Sec. 184 (b) of R.A No. 8293 meaningless. 62Lack of intent to
infringe copyright in the case of lack of attribution may now become a
defense.63
Justice Carpio dissents on two grounds. First, he explains that
the Court has no jurisdiction to decide in an administrative case
whether a sitting Justice of this Court has committed misconduct in
office as this power belongs exclusively to Congress.64 Second, he
expressed that in writing judicial decisions a judge must comply with
the Law on Copyright as the judge has no power to exempt himself
from the mandatory requirements of the law. In every case, there is a
legal duty to make the proper attribution when copying passages from
copyrighted works because the law expressly requires such
attribution without exception.65
Justice Carpio-Morales joins the view of Justice Carpio and
Justice Sereno on the merits of the case. She noted that the Court
easily attributed the lapses in the editorial work in the drafting of the
Vinuya decision to accidental deletions. It conveniently assigned such
human errors to the realm of accidents, without explaining whether it
could not have been foreseen or avoided. She posits that the Court
should cause the issuance of a corrected version in the form of, what
Justice Sereno suggests as a corrigendum.66
b. Habana V Robles
1. Factual Background
Pacita Habana et al. were the authors and copyright owners of
a college textbook entitled College English for Today Series 1 and 2.
They accidentally saw the book of Felicidad Robles entitled
Developing English Proficiency Books 1 and 2 while they were
researching for books that will aid them in revising their own work.
They discovered that the book of Robles was remarkably similar to
the contents, scheme of presentation, illustrations and illustrative
examples of their book. They then sued Robles and her publisher for
infringement and unfair competition with damages.67
60

Sereno Dissent, supra note 12

Id. (citing Gordon Harvey, Writing with Sources: A Guide for Harvard Students (Hackett Publishing
Company, 2nd ed. [c] 2008))
62
RA No. 8293 (1998, Sec. 184 (b) )
63
Sereno Dissent, supra note 12
64
Id. (J. Carpio, dissenting opinion) [hereinafter Carpio Dissent]
65
Id. (citing RA No. 8293 (1998))
66
Id. (J. Carpio-Morales, dissenting opinion)
67
Habana et al. v. Robles et al, G.R. No. 131522, July 19, 1999
61

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Robles alleged that her sources were from foreign books. She
contends that similarity in styles cannot be avoided since they come
from the same background and orientation. The trial court and the
Court of Appeals ruled in favor of Robles. 68
2. The Decision of the Supreme Court
The Supreme Court held that copying per se does not
constitute copyright infringement. What is prohibited is the copying
that produces an injurious effect. Furthermore, it is not required that
the entire work be copied in order for copyright infringement to exist.
It is enough that so much is taken that the value of the original work is
substantially diminished or the labor of the original author is
appropriated by another. 69
The respondents defense that the similarity in style can be
attributed to the fact that both of them are exposed to the same
syllabus and they have the same academic experience and teaching
approach is untenable. The Supreme Court noted that the similarities
in their works were too evident. Robles should have acknowledged
Habana as the source. Copying without permission is injurious thus,
constitute copyright infringement. 70
3. Dissent
Chief Justice Hilario Davide Jr. did not join the majoritys view
that Robles act constitutes copyright Infringement. Although he
concurs with the majority decision that it is not required that the entire
work be copied in order for copyright infringement to exist as long as
the labor of the original author is substantially appropriated, his
opinion differ as to the degree of consideration to be used in
determining substantial appropriation of a book. 71
He asserts that the similarity of the books written by Robles in
the present case does not amount to an appropriation of a substantial
portion of the work of Habana et al. The Chief Justice concluded that
the similarities exist due to the fact that the two books tackle the
same subjects and the sources are common. He believes that the
similarity in orientation and style can be attributed to the exposure of
the authors to the same syllabus, academic experience, teaching
approaches and methodology. 72
c. Interface Between the Two Cases
It is clear that the case of In the Matter of the Charges of
Plagiarism, Etc., Against Associate Justice Mariano C. del Castillo
68

Id.
Id.
70
Id.
71
Id. (CJ. Davide, dissenting opinion)
72
Id.
69

9|Page

depicts plagiarism while the case of Habana v Robles illustrates

copyright infringement.
The case of Justice del Castillo is a classic example of
plagiarism not necessarily resulting to copyright infringement while
the case of Habana v Robles is one of the instances where
plagiarism infringes copyright. Both cases highlight the importance of
citation and attribution.
The ruling in both cases cause confusion when it comes to the
definition of plagiarism. 73The Supreme Court defined plagiarism in
the case of Habana v Robles as the act of using anothers work
without the authors consent. It was pronounced in this case that
malicious intent is immaterial. 74 However, the Court added intent to
deceive as an essential element of plagiarism in deciding the case of
Justice del Castillo.75
The Supreme Court has the prerogative to formulate its own
definition of plagiarism. Its ruling that intent is a fundamental element
may be wrong but there is scant legal and persuasive basis to say so
with absolute certainty.76
IV.

Analysis
a. The Concept of a Good Case Law

The principle of a case law stems from the rule that where a
point has been once settled by a decision of the Supreme Court, it
forms a precedent which is not afterwards be departed from. After a
legal principle has thus been well settled, it becomes a binding rule to
be applied in all cases of similar nature.77 The policy of the doctrine is
to give uniformity, certainty and stability to the law.78
There are established rules recognized for the application of
precedents. It a fundamental rule that a) Each court is bound by the
decision of courts above it; b) Any relevant judgment of any court is a
strong argument entitled to respectful consideration; c) a judgment is
authoritative only as to its ratio decidendi. 79
However, the doctrine of precedent is not absolute. It can be
set aside when it is manifestly absurd or unjust. When a case law is
set aside, the former decision is not considered as bad law, rather it
was not a law. To justify abandonment of an authoritative precedent,
73

Jose Manuel Diokno, Statement of the DLSU College of Law on the Plagiarism Case, November 5, 2010
available at: http://law.dlsu.edu.ph/_media/_pdf/Statement_Final_Draft.pdf; accessed 2 March 2014
74
Habana v Robles, supra note 67
75
In Re: Plagiarism, supra note 10
76
Cajucom, supra note 5
77
Emiliano Mina, The Doctrine of Stare Decisis and the Supreme Court of the Philippine Islands, 16 Ph. L.
J., 405 (1937) (citing: Corpus Juris, Vol. 58, 1318)
78
Id.
79
Id. (citing: Allen, Law in the Making, 2nd Edition, 201.)

10 | P a g e

two conditions must be fulfilled. First, it must be contrary to law and

second, the decision must be a wrong decision.80
A decision of the Supreme Court is considered a good case law
when it is founded on reason and justice. It is respected by the
officers of the court and the society at large.81
b. Are the two cases considered as good case laws?
The two cases at point satisfy the basic requirement of a good
case law that it must be promulgated by the Supreme Court and that
it is founded on reason. However, the element of justice and respect
not only from the legal profession but also from they lay people are
disputed.
The Supreme Courts decision regarding the alleged plagiarism
of Justice del Castillo received numerous criticisms. Then Associate
Justice Maria Lourdes Sereno, one of the dissenters in the
controversial ruling in the case of plagiarism, has raised the
possibility that the courts decision may set a bad precedent on how
plagiarism cases are dealt with in other institutions, not just in the
courts. Unless reconsidered, this Court would unfortunately be
remembered as the Court that made malicious intent an
indispensable element of plagiarism and that made computer-keying
errors an exculpatory fact in charges of plagiarism, without clarifying
whether its ruling applies only to situations of judicial decision-making
or to other written intellectual activity. 82
The decision of the Supreme Court is a cover to protect its
bruised ego. Senator Juan Ponce Enrile expressed that The Courts
independence, honor and integrity, including its moral ascendancy,
have been placed under a dark cloud of doubt unfortunately by the
intellectual dishonesty of one of its own. Plagiarism is a grievous
affront not only to the Supreme Court itself but to the Philippine
judicial system. To claim as ones own the intellectual work of another
without proper attribution is theft of intellectual property. Such
practice has no place especially in the drafting, preparation, debates,
discussions and decisions of our courts, most especially, the
Supreme Court.83 Associate Justice Marvic Leonen, who was then
the dean of the University of the Philippines (UP) College of Law, said
that it is intellectual dishonesty for a judge or a justice to pass off a
material as if it were the product of his extensive research when it

80

Mina, supra note 77,411 (citing: Salmond, Jurisprudence, 7th Edition, 193-194)
Atty. Salvador Hipolito, Regional Public Attorney, interview by author, recording, Pampanga, 2 March
2014
82
Dedace, supra note 6
83
Jojo Robles, Enrile weighs in, October 30, 2010 available at:
http://www.manilastandardtoday.com/insideOpinion.htm?f=2010/october/29/jojorobles.isx&d=2010/oct
ober/29 accessed 2 March 2014
81

11 | P a g e

was merely copied from an earlier research.84 The standards are

supposed to be stricter for judges and justices for their decisions
reveal how they interpret the law. It also strikes at the core of the
judges or the justices credibility, competence, and integrity. 85 The
Supreme Courts tilt in favor of one of its members is a clear
disregard of several legal considerations. Merlin Magallona, professor
of international law and considered one of the countrys experts in
that field, said that the Supreme Courts move to absolve Associate
Justice Mariano del Castillo of plagiarism is a possible violation of the
Berne Convention for the Protection of Literary and Artistic Works,
which the Philippines is a signatory.86
The Supreme Courts ruling has opened the flood gates for
wholesale plagiarism in the academe. This ruling will have bad effect
on the writing of papers not only within the legal community, but also
in the academic community in general, according to Ibarra Gutierrez
III, a professor at the UP College of Law.87 With this decision, no one
in the Philippines will ever be convicted of plagiarism or copyright
infringement through lack of attribution. 88 The De La Salle University
(DLSU) law faculty, led by Dean Jose Manuel Diokno, also criticized
the Supreme Court for supposedly tolerating intellectual dishonesty
by a fellow member of the bench. According to them, their efforts to
prevent the rise of intellectually dishonest lawyers will be in vain if the
highest court tolerates the practice of plagiarism. 89 Aside from the
DLSU law school, the Catholic Educational Association of the
Philippines (CEAP) and the Coordinating Council of Private
Educational Associations (COCOPEA) also issued their separate
criticisms of the courts decision. They expressed that the ruling is
deleterious to scholarly pursuit because it detracts from the essential
purpose of the Higher Education Institution to be the cradle of original
ideas. 90 CEAP said the Supreme Court condoned plagiarism when it
cleared Del Castillo of the charge that he copied the words of foreign
legal minds without attribution.91
The ruling did not escape the eyes of the lay people. They find
that the Supreme Courts definition of what constitutes plagiarism still
84

Aries C. Rufo and Purple S. Romero, SC justice plagiarized parts of ruling on comfort women, July 18,
2010 available at: http://www.gmanetwork.com/news/story/196407/news/nation/sc-justice-plagiarizedparts-of-ruling-on-comfort-women; accessed: 1 March 2014
85
Id.
86
Andreo Calonzo, SC plagiarism ruling may have violated Berne copyright pact, expert says, October 22,
2010 available at: http://www.gmanetwork.com/news/story/204069/news/nation/sc-plagiarism-rulingmay-have-violated-berne-copyright-pact-expert-says; accessed: 1 March 2014
87
Id.
88
Solita Collas-Monsod, Bully Tactics, available at :http://globalbalita.com/2010/10/20/bully-tactics/
accessed 1 March 2014
89
Dedace, supra note 6
90
Id.
91
Ramon Tulfo, A bully Supreme Court, November 11, 2010 available at:
http://newsinfo.inquirer.net/inquirerheadlines/metro/view/20101110-302550/A-bully-Supreme-Court
accesed 1 March 2014

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reveal that del Castillos action constitutes plagiarism.92 They

expressed that The notion that plagiarism becomes plagiarism only
when it is done with malice will not go down in the annals of world law
as a legal insight; it will go down there as a joke. They perceive it to
produce a laughable effect instead of a chilling effect.93
Although it is indisputable that the Supreme Court has the sole
authority to establish case laws that are binding in the legal
profession, it is the Authors position that the case of In the Matter of
the Charges of Plagiarism, Etc., Against Associate Justice Mariano C.
del Castillo is not considered as a good case law. If a precedent is to
be followed because it is a precedent, even when decided against
justice, there can be no possible correction of abuses, because the
fact of their existence renders them above the law.94
On the other hand, the case of Habana v Robles received wide
acceptance among the officers of court in the legal profession.
The case of Habana v Robles is regarded as a landmark case
for it is the only case that deals with books and fair use of Republic
Act No. 8293.95 A Canadian authority, in a recent work, proposes
factors to consider in determining whether there is infringement or
not, and the proposal is in agreement with the majoritys doctrine in
the case of Habana v Robles.96
Those who oppose the ruling in the plagiarism case of del
Castillo agrees with the definition of plagiarism which was adopted in
the case of Habana v Robles. 97 Intent to infringe is immaterial in
determining plagiarism. Ruling otherwise will render lack of malicious
intent as a defense to a charge of violation of copyright law through
lack of attribution.98
Although as a rule, recent precedents must serve as point of
reference or authority in deciding succeeding cases, 99 the Author
submits that the definition of plagiarism in the case of Habana v
Robles must be followed instead of the definition adopted in the
plagiarism case of Justice del Castillo. Its conformity with RA 8293

92

Randy David, Plagiarism: a tale of two cultures, October 24, 2010 available at: accessed 4 march
2014http://opinion.inquirer.net/inquireropinion/columns/view/20101023-299338/Plagiarism-a-tale-oftwo-cultures
93
Conrado de Quiros, Malice in Wonderland, October 27, 2010, available at:
http://opinion.inquirer.net/inquireropinion/columns/view/20101025-299586/Malice-in-Wonderland;
accessed 4 March 2014
94
Mina, supra note 77
95
MILAGROS SANTOS-ONG, Copyright Laws, Issues Concerns and Cases, Available from: Academic Search
Premier, EBSCOhost; accessed 6 March 2014
96

Vaver, supra note 32

Diokno, supra note 73
98
Sereno Dissent, supra note 12 (citing: RA 8293)
99
Mina, supra note 77
97

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and the law on justice has drawn respect from the legal profession
making it a good case law.
V.

Conclusion

Plagiarism and Copyright Infringement is a common practice

today.100 People claim an idea as their own without even bothering to
ascertain its origin. Thus, it can be said that everyone has been guilty
of copying in their life. 101However, it does not follow that we should
be remiss in our duty to attribute ideas and recognize originality.102
The best solution to the disturbing controversy involving
plagiarism and copyright infringement within the legal profession is to
re-educate lawyers and law students on the harmful effects of
plagiarism and the proper rules of attribution and citation.103
Enhancing compliance with institutional codes and ethics code is
another measure to address the issue.104 Above all, the controversy
could be settled by putting an end to the problem brought about by
the difficulty of defining the terms. 105
The need for a well defined precedent regarding plagiarism and
copyright infringement is essential. Without such, a continuation of
discord will surely plague the legal profession.

100

Cajucom, supra note 5 (citing Jaime Dursht, Judicial Plagiarism: It may be Fair Use but is it Ethical?
(1996-7) Cardozo Law Review)
101
Anne Fadiman, Nothing new under the sun. Civilization (1997);4(1):86. Available from: Academic
Search Premier, EBSCOHost. Accessed 6 March 2014
102
Cajucom, supra note 5 (citing Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law:
Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 HASTINGS L. J.
167, at 200)
103
Id.
104
Id.
105
Id.

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