Why it is plagiarism without a Corrigendum

This is a comment on the plagiarism controversy at the Supreme Court, where there is a majority view and a dissent by two.

It is to support the idea that there is plagiarism by negligence; or in the alternative, that the failure to correct is delayed plagiarism.

Think about it for a moment.  Certainly there is no such thing as theft by negligence.  But there is a form of theft where you keep what had at first innocently come into your possession. So if you copy someone else’s work, and at first innocently fail to attribute original authorship, you could end up making it look like “you thought or wrote it up yourself.”  When the original author shows and says, “Hey, I wrote that,” and you admit that you copied it “by mistake” but then did nothing more, this would be essentially the same as when the possessor of “lost property” maintains possession. That’s when the possessor becomes a thief under Art. 308, Revised Penal Code. [1]

Why this analogy?  Because if the Court does not do a Corrigendum, it is the same as committing plagiarism.  This time it’s also a conspiracy, because those who shared in the Majority view but failed to decide to issue a Corrigendum are now taking part in a “continuous crime,” or at least a “continuous offense.”  The legal dictionary defines continuous crime as one that involves ongoing elements (Black’s). In a case, a “continuing offense” was referred to as one where “by reason of the very nature of the offense committed, the violation of the law is deemed to be continuing” (Parulan vs. Director of Prisons, 1968; included in Philippine Law Dictionary, by Federico Moreno). [2]

In one sense, plagiarism is unique. It can be a “delayed” offense, but once it starts, it continues because the publication is “out there” for the entire world to see.  Because mens rea [3] is in the mind of the plagiarist, plagiarism begins when there is knowledge of lack of attribution and publication of the offending work.  One innocent of plagiarism would readily say, “I’m sorry, I didn’t mean to not say that this is someone else’s work,” and then proceed to correct the offending published piece.  Why?  Because otherwise mens rea would have already set in and yet the “innocent offender” allows the published work to stand uncorrected. An apology may not be enough because the rest of the world, except those few familiar with the plagiarism controversy, would continue to unwittingly grant authorship to the wrong person.

Plagiarism in its generic sense is also unique because of the element of shame. Until corrected, it is a continuing shame, possibly also a crying shame. In plagiarism by negligence, the plagiarist is liable for harm that transpires before the offending piece was withdrawn or corrected.

Moreover, if the defense of lack of mens rea is relied upon by the Supreme Court, it should with more force allow the same for those who believed there was plagiarism in a generic sense.  For one, according to the dissent, there are many authorities who do not require mens rea for plagiarism to arise.  This seems natural because there are many instances of plagiarism where the plagiarist is either incompetent or negligent. Otherwise, schools and universities would not have to take pains to train students to avoid the slippery slope of cut-and-paste intellectual theft.  For another, the Court has admitted to an “accidental mistake,” and it does not seem right that it should penalize those who pointed out the obvious lack of attribution.

[1] “xxx Theft is likewise committed by … [a]ny person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner.”

[2] It may be an unsettled fine legal point, but for this discussion it seems that “continuing” and “continuous” mean the same.

[3] Mens rea is Law Latin for “guilty mind.”  In common law, there are two essential elements for criminal liability to arise: actus reus (the prohibited act) and mens rea.  See Black’s entry for “mens rea.”

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