In a recent ponencia, Supreme Court Associate Justice Mariano del Castillo used citations from journal articles without attribution. And so they appeared in the document as if they were the product of his own reflection. Law professors from the University of the Philippines called attention to the fact that these were actually lifted from the writings of foreign scholars. An ethics committee of the high court investigated and declared the lapse to be inadvertent. There is no plagiarism here, they said. That should have ended the matter. But now, the SC is asking the professors to explain why they should not be sanctioned for violating the Code of Professional Responsibilities of Lawyers. I don’t know what the high court hopes to gain from keeping the issue alive. This is a clash of two cultures that the court cannot hope to win.
At semester’s end, professors like me face the arduous task not only of assessing the quality of student term papers, but of making sure, in the first instance, that these were actually written by their purported authors. While I do not expect student papers to be original, I do demand that they be written by the students themselves. When I have doubts about this, I suspend judgment until I have talked to the student. But if there is no time, I compare the student’s submission with the quality of his/her previous work or performance in class to determine if what is before me is a delayed flash of brilliance or a desperate case of pathetic copying. It is never easy.
There are many ways of copying other people’s work and passing it off as your own. The most grievous practice is submitting a bought, ghostwritten, or borrowed paper — and this includes turning in exactly the same paper written by a student for another course in which he had already earned a grade. But the most common practice is the almost word-forword lifting of entire passages or paragraphs from other people’s works without proper attribution and quotation marks. This always gets my goat. If the student has woven these pilfered ideas into a forceful paper that manifests intellectual effort, I mark the suspicious passages and make the corresponding deduction in grade, but I do not flunk the student. I may give him an “Incomplete” and ask him to rewrite the paper. Warning against the temptations of plagiarism right on the first day of classes, I feel rewarded by the sense that there is less of it now among my students.
A big part of the set of values governing higher learning deals with sensitivity to, and due acknowledgement of, the intellectual and imaginative work of others that produced the knowledge and cultural products we are using today. That is the reason for the almost inordinate time and attention academe gives to the preparation of footnotes, bibliographic references, and citations. Underpinning these technical rules of research and writing is a culture of intellectual honesty that cannot be separated from academic excellence.
Outside academe, many still believe that imitation is the best compliment that can be paid to an author, inventor, or creator of a work of art. This is changing radically, however, with the advent of copyright laws which protect intellectual property rights. These laws have made copyright infringement tantamount to theft, for which one can be charged in court.
But though they overlap, plagiarism and copyright infringement are two different offenses. I owe this insight to “The little book of plagiarism” written by Judge Richard A. Posner, who is both a judge (US Seventh Circuit Court of Appeal) and an academic (University of Chicago). Plagiarism is a grievous offense in academe and literary circles, but its punishment rarely, if at all, involves the law. One might say its exposure is its own punishment. Here is how Posner puts it: “The stigma of plagiarism seems never to fade completely, not because it is an especially heinous offense but because it is embarrassingly second rate; its practitioners are pathetic, almost ridiculous.”
Copyright infringement, in contrast, tends not to elicit the same passionate condemnation within the academic community. A lot of it is probably going on all the time in many universities: chapters or entire books are routinely photocopied without permission from authors and publishers. It is deemed excusable when not done in commercial quantities. This kind of copying does not involve concealment of the real author, and so it is not plagiarism. Yet, it is a crime, and one can go jail for it.
Clearly, the academe’s codes are not the same as those of the legal system. No one perhaps knows this better than Posner who straddles both worlds: “Most nonlawyers probably think judges write their own opinions. Only a small minority of us do nowadays; the others edit their law clerks’ opinion drafts to a greater or lesser extent – sometimes so extensively that the judge deserves to be considered a coauthor or even the principal coauthor of the opinion, though not the sole author. Judges or their clerks sometimes insert into their opinions, without attribution, verbatim passages from lawyers’ briefs; and many orders, findings of fact, and other documents signed by judges are actually prepared entirely by the parties’ lawyers, again without attribution…. Judges would like people to believe they write their own opinions – which is the element of deceit, for judicial acknowledgment of ghost authorship by law clerks is vanishingly rare.” I am not aware that Posner has become the object of any move to remove him from the US Court of Appeals for writing these lines.