Ghosts on TV, in school, and in the Supreme Court

In recent memory, three incidents of alleged plagiarism have been reported in the Philippines.  One is by Karen Davila, a TV personality; another, by Manuel Pangilinan, a businessman;  and yet another, by the Philippine Supreme Court.

In all three cases there seems to be a more or less common defense that goes essentially as follows:  “I didn’t  really do it.  Someone else working for me did it, and I had no idea that he did it.”  For example, Pangilinan takes pains not to admit to plagiarism, although he said that his speech “had been borrowed from certain other graduation speeches.”  As of this writing, there seems to have been no public airing on the part of Davila or her TV network of the results of a promised investigation of the matter.  An ethics case is ongoing within the Supreme Court, and some relevant commentary on this is at Marichu Lambino’s blog.

The idea is that there is a practice called ghost-writing, where the ghost does the real writing but waives his right of authorship to another.  So far so good; this is in the territory of “no harm, no damages.” The infamous damnum absque injuria concept does not even apply because, in the usual course, there is no legal injury in the world of ghost-writers and the supposed authors.

But if the ghost-writer commits plagiarism, does his plagiarism then also belong to the person who became the supposed author?  (Elsewhere, I noted that plagiarism is a form of copyright infringement, but the question now is one on who must bear the responsibility if the supposed author and the real author are not the same.)

I can imagine that in these cases one will have to work by analogy with the rules on vicarious tort liability, or alternatively, by analogy with the rules on a seller’s warranty against eviction.

As to vicarious torts, if a servant or agent commits a tort, the employer or principal can be held liable in certain cases (Arts. 2176 and 2180, Civil Code).  This would seem to apply to Davila and Pangilinan if it can be established that they were “employers” of those who committed plagiarism.

As to warranties of sellers, the Civil Code (Art. 1548) provides that sellers must warrant against eviction, which is to say that they warrant their proper title to what they purportedly sell.  If the vendor was, for example, a fence who trafficked in stolen goods, then the vendee has a remedy if the true owner is shown and re-takes the object sold.  If it were possible to apply the doctrine in Art. 1548, and if the “buyer” of a piece of plagiarism were a publisher, the publisher may sue the purported author for the plagiarism undertaken by a ghost.

But what happens if the aggrieved party is a noncommercial entity, such as an academic community who discovers that one of its own committed plagiarism?  The usual effect is loss of reputation on the part of the person who committed plagiarism, and perhaps this is sufficient justice.  Within a school setting, plagiarism by a student usually merits expulsion or a failing grade.

What if the alleged plagiarism is committed by a country’s Supreme Court?  A former Supreme Court Justice has weighed in, raising the “novel” questions of: “As it applies to judicial decisions, what constitutes plagiarism? What is the penalty for its commission? Who, if any, should be held responsible?”

With even more due respect, I submit that there are no ready answers.  One piece of the puzzle is the doctrine that the Supreme Court can commit error, but still such error becomes law.  In other words, the aggrieved party does not have a proper forum to sue on plagiarism.  It seems that all the aggrieved party can do is to exercise his right to freedom of expression.

Another question that can arise is whether a “fair use” defense can be set forth in a plagiarism case.  It seems that such a defense can be raised only if the suit is for monetary damages.  It is hard to imagine that stealing authorship can be made out as fair use.  It is not likely to be a Robin Hood case of stealing from the rich to give to the poor, unless, like Rawls, you can make out a theory that it is just to take from the brilliant and give to the dull!

How rampant is plagiarism in the Philippines?  No one really knows, but I suspect that plagiarism stems from a certain culture of intellectual dishonesty within the Philippine educational system.  I’ve made the observation that there are teachers who pretend to teach, students who pretend to study, and parents who actually do the home work!  Of course, a parent can be a ghost student only so far.

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