While criminal sanctions will only apply to specific types of plagiarism, Justice Secretary Leila de Lima that plagiarism in the form of online piracy of copyrighted material is tantamount to copyright infringement. The Act has been widely by various parties () as unconstitutional and , with particular concerns over the vagueness of the statutory definition of “libel.” In an , de Lima seems to have downplayed the constitutional issues that the Act poses, indicating that the public should simply avoid plagiarism through proper attribution, noting that the criminal offence requires deliberate intent. However, in a legal system, where stare decisis is , the legislature has an increased responsibility to be explicit in their intentions so that the laws can be properly implemented.

By issuing an advisory, the Philippine Department of Justice (DOJ) intended to increase public awareness and dialogue regarding plagiarism and copyright infringement issues, but in the process, it may have confused the subject even more. By explicitly linking copyright to criminal law, the DOJ statement may have had a chilling effect on the creation of new copyrightable materials, as creators will be wary of potential criminal sanctions. Without proper contextualization, the already are impossible to delineate with respect to the state of the law. It is clear that purposive analyses are vital to establish such lines, but the effect could be calamitous for the “guinea pigs” of the legislation.

It has been widely contented that the , and sources such as , in combination with a lack of proper accreditation and citation education, are responsible for a rise in plagiarism. While this may be, it is also quite likely that the Internet age has , and in part has dictated the necessity for these new cyber-laws to combat web-based issues. However, as I have , advances in technology pose new challenges to the State to ensure that responsible government is in place to uphold the constitutional rights of citizens. The modern age has become something of an information overload, and great care must be taken by governments to ensure that information, particularly information used in criminal proceedings, is obtained legitimately and in line with human rights. Western courts have taken a relatively liberal approach in balancing the rights of states and citizens, and indicate that privacy interests of citizens are of paramount concern – but are limited within ‘reasonable’ parameters.

Laws are generally reflective of social values, and intellectual property laws are no exception. In an , Bill C-11 (Copyright Modernization Act) was assessed in view of social norms, and the author indicated that when laws are in accordance with social values, it is more likely that citizens will follow them. This is a difficult notion to disagree with, especially when the laws are written with clear intention and purpose with respect to what the State expects its citizens. Indeed, plagiarism is noted as an offence of integrity that is particularly socially based in public adherence due to the implications that can result from being caught in the act. Frequently, plagiarists are subject to , and end up self-sabotaging. However, in an ironic twist, Philippine Senator Vicente “Tito” Sotto III, the for inserting the controversial criminal libel clause into the Cybercrime Prevention Act has been under fire for . Unfortunately for Philippine citizens, at least in the interim, this seems to have an element of quis custodiet ipsos custodes, who watches the watchers?

The answer may be in part, the Supreme Court. With respect to this Act, it seems that the uprising of the citizens, through numerous petitions and dialogue, has served to ensure that the proper checks and balances are in place. Irrespective of opinions about the purposes of the legislation, be it to purify the reputations of legislators or to legitimately protect intellectual property interests of citizens, it is essential that the balance of interests be considered, as with any law. The Supreme Court of the Philippines will begin to of the Act and how to approach the petitions on October 9, 2012.

UPDATE: On October 9, 2012, the implementation of the legislation was  pending deliberation of the Supreme Court. Nobody has been charged yet under the Act, and it seems that the of Philippine citizens and have at least affected another review of the legislation, which was widely criticized as overbroad and unconstitutional. The Court will hear oral arguments from all of the 15 petitioners questioning the constitutionality of the legislation, as well as the government as a responding party. The DOJ has responded by promoting discussion among all sectors of government and with civil rights groups concerned about the effects of the legislation. Following oral arguments, the Supreme Court will rule on the merits, which will dictate the ultimate fate of the legislation. The against the law will expire in 120 days.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post The “Word” Is Not Enough: New Cybercrime Prevention Act Leaves Philippine Plagiarists Criminally Vulnerable (UPDATED) appeared first on IPOsgoode.

Cybercrime has no established definition. On the broadest interpretation it could include any criminal act committed via computer or the Internet. But what distinguishes theft from your online banking account and theft by someone impersonating you in the branch or forging your signature on a cheque? For many crimes involving computers, the essential elements are the same as the traditional crime and recognizing a distinction when a computer is used does not make sense. A computer does not aggravate a theft in the way that a weapon does (by increasing the likelihood of bodily harm) it is merely a method of committing the same crime. For "cybercrime" to be coherent as a category, it must be in some way distinct from recognized traditional crimes: cybercrimes are those criminal acts that are unique to computers.

But some would argue that there are no crimes that meet this definition. In a and a , Professor Susan Brenner argues that all known cybercrimes can be encompassed, with a little effort, by existing crimes. Consider a few candidates for pure cybercrimes: hacking, denial of service, and distributing malicious software. These are criminal acts which take place in "cyberspace". But each of them has a real-world analogue: hacking can be viewed as a form of digital trespass; denial of service is vandalism or common nuisance; malicious software is mischief or theft of processing power. Thus, even these acts are like the example of theft in the previous paragraph: merely traditional crimes carried out through the medium of cyberspace. The solution is not to invent new crimes but to revise existing ones to accommodate changing situations. Brenner does, however, suggest the possibility of true cybercrimes (acts only possible in cyberspace) emerging in the future. There is even a precedent for criminalizing acts that take place in another realm---witchcraft. It was once believed that witches manipulated spirits in another realm to harm their victims much like cyber-criminals act in cyberspace to harm their victims. But for the present time Brenner concludes that traditional crimes are enough.

One troubling aspect of Brenner's argument is its reliance on the concept of "cyberspace". Cyberspace allows you to easily draw analogies between real and virtual actions---for example, associating hacking with trespassing. But cyberspace is just a metaphor. It is useful for explaining the relationships between computers, but it leads to inaccuracy in describing the actions of people online. It is certainly possible to redefine the legal understanding of location to match this metaphor, but just because something is possible doesn't make it right. Without relying on cyberspace, the ability to remotely access and manipulate another person's property is actually something new but still easily described: the Criminal Code calls it . The provision does not criminalize "digital trespass" but rather unauthorized access, which is an accurate non-metaphorical description of the act we wish to proscribe. This is a cybercrime. It is not a pure cybercrime in the sense that Brenner is looking for, but it is a distinct criminal act in which computers play an essential role.

The Criminal Code provision also highlights another problem with extending real-world crimes to encompass virtual counterparts. Unauthorized use of a computer is classified in the Code alongside theft rather than breaking and entering. This demonstrates that there may be multiple candidate offenses for a single cybercrime. What can be clearly defined as a separate crime becomes muddled if we try to force it into existing categories. If only for practical reasons, it makes sense to treat it differently.

The global reach of the Internet and the power and flexibility of computers allow us to interact in brand new ways. Sometimes this merely provides a new method to commit an old crime. But there are some crimes---cybercrimes---in which the role of the computer renders them practically distinct.

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