COPYRIGHT CASES to the remote areas, thus enriching the lives of the residents thereof through the dissemination of social, economic, GABIANE, NIKKI P. LLB 1 educational information and cultural programs. JANUARY 2012 The DTH pay television services of PMSI is equipped to provide nationwide DTH satellite services. Concededly, PMSI’s DTH pay television services covers very much wider areas in terms of carriage of broadcast signals, including areas not reachable by cable television services thereby providing a better medium of dissemination of information to the public. In view of the foregoing and the spirit and intent of NTC memorandum Circular No. 4-08-88, particularlyABS-CBN BROADCASTING section 6 thereof, on mandatory carriage of television broadcast signals, DTH pay television services should be deemedCORPORATION, covered by such NTC Memorandum Circular.YNARES-SANTIAGO, J.: For your guidance. (Emphasis added)  This petition for review on certiorari  assails the July 12, 2006 Decision  of the Court of Appeals in CA- On August 26, 2003, PMSI filed another Manifestation with the BLA that it received a letter dated July 24,G.R. SP Nos. 88092 and 90762, which affirmed the December 20, 2004 Decision of the Director-General of the 2003 from the NTC enjoining strict and immediate compliance with the must-carry rule under Memorandum CircularIntellectual Property Office (IPO) in Appeal No. 10-2004-0002. Also assailed is the December 11, 2006 Resolution  No. 04-08-88, to wit:denying the motion for reconsideration. Dear Mr. Abellada: Petitioner ABS-CBN Broadcasting Corporation (ABS-CBN) is licensed under the laws of the Republic of the Last July 22, 2003, the National Telecommunications Commission (NTC) received a letter dated July 17,Philippines to engage in television and radio broadcasting.  It broadcasts television programs by wireless means to 2003 from President/COO Rene Q. Bello of the International Broadcasting Corporation (IBC-Channel 13) complainingMetro Manila and nearby provinces, and by satellite to provincial stations through Channel 2 on Very High Frequency that your company, Dream Broadcasting System, Inc., has cut-off, without any notice or explanation whatsoever, to air(VHF) and Channel 23 on Ultra High Frequency (UHF). The programs aired over Channels 2 and 23 are either produced the programs of IBC-13, a free-to-air television, to the detriment of the public.by ABS-CBN or purchased from or licensed by other producers. We were told that, until now, this has been going on. ABS-CBN also owns regional television stations which pattern their programming in accordance with Please be advised that as a direct broadcast satellite operator, operating a direct-to-home (DTH)perceived demands of the region. Thus, television programs shown in Metro Manila and nearby provinces are not broadcasting system, with a provisional authority (PA) from the NTC, your company, along with cable televisionnecessarily shown in other provinces. operators, are mandated to strictly comply with the existing policy of NTC on mandatory carriage of television Respondent Philippine Multi-Media System, Inc. (PMSI) is the operator of Dream Broadcasting System. It broadcast signals as provided under Memorandum Circular No. 04-08-88, also known as the Revised Rules anddelivers digital direct-to-home (DTH) television via satellite to its subscribers all over the Philippines. Herein individual Regulations Governing Cable Television System in the Philippines.respondents, Cesar G. Reyes, Francis Chua, Manuel F. Abellada, Raul B. De Mesa, and Aloysius M. Colayco, are members This mandatory coverage provision under Section 6.2 of said Memorandum Circular, requires all cableof PMSI’s Board of Directors. television system operators, operating in a community within the Grade “A” or “B” contours to “must-carry” the PMSI was granted a legislative franchise under Republic Act No. 8630  on May 7, 1998 and was given a television signals of the authorized television broadcast stations, one of which is IBC-13. Said directive equally appliesProvisional Authority by the National Telecommunications Commission (NTC) on February 1, 2000 to install, operate to your company as the circular was issued to give consumers and the public a wider access to more sources of news,and maintain a nationwide DTH satellite service. When it commenced operations, it offered as part of its program line- information, entertainment and other programs/contents.up ABS-CBN Channels 2 and 23, NBN, Channel 4, ABC Channel 5, GMA Channel 7, RPN Channel 9, and IBC Channel 13, This Commission, as the governing agency vested by laws with the jurisdiction, supervision and control overtogether with other paid premium program channels. all public services, which includes direct broadcast satellite operators, and taking into consideration the paramount However, on April 25, 2001,  ABS-CBN demanded for PMSI to cease and desist from rebroadcasting interest of the public in general, hereby directs you to immediately restore the signal of IBC-13 in your networkChannels 2 and 23. On April 27, 2001,  PMSI replied that the rebroadcasting was in accordance with the authority programs, pursuant to existing circulars and regulations of the Commission.granted it by NTC and its obligation under NTC Memorandum Circular No. 4-08-88,  Section 6.2 of which requires all For strict compliance. (Emphasis added) cable television syste operators operating in a community within Grade “A” or “B” contours to carry the television Meanwhile, on October 10, 2003, the NTC issued Memorandum Circular No. 10-10-2003, entitledsignals of the authorized television broadcast stations.  “Implementing Rules and Regulations Governing Community Antenna/Cable Television (CATV) and Direct Broadcast Thereafter, negotiations ensued between the parties in an effort to reach a settlement; however, the Satellite (DBS) Services to Promote Competition in the Sector.” Article 6, Section 8 thereof states:negotiations were terminated on April 4, 2002 by ABS-CBN allegedly due to PMSI’s inability to ensure the prevention of As a general rule, the reception, distribution and/or transmission by any CATV/DBS operator of any television signalsillegal retransmission and further rebroadcast of its signals, as well as the adverse effect of the rebroadcasts on the without any agreement with or authorization from program/content providers are prohibited.business operations of its regional television stations.  On whether Memorandum Circular No. 10-10-2003 amended Memorandum Circular No. 04-08-88, the NTC explained On May 13, 2002, ABS-CBN filed with the IPO a complaint for “Violation of Laws Involving Property Rights, to PMSI in a letter dated November 3, 2003 that:with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction,” which was To address your query on whether or not the provisions of MC 10-10-2003 would have the effect ofdocketed as IPV No. 10-2002-0004. It alleged that PMSI’s unauthorized rebroadcasting of Channels 2 and 23 infringed amending the provisions of MC 4-08-88 on mandatory carriage of television signals, the answer is in the negative.on its broadcasting rights and copyright. xxxx On July 2, 2002, the Bureau of Legal Affairs (BLA) of the IPO granted ABS-CBN’s application for a temporary The Commission maintains that, MC 4-08-88 remains valid, subsisting and enforceable.restraining order. On July 12, 2002, PMSI suspended its retransmission of Channels 2 and 23 and likewise filed a Please be advised, therefore, that as duly licensed direct-to-home satellite television service providerpetition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 71597. authorized by this Commission, your company continues to be bound by the guidelines provided for under MC 04-08- Subsequently, PMSI filed with the BLA a Manifestation reiterating that it is subject to the must-carry rule under 88, specifically your obligation under its mandatory carriage provisions, in addition to your obligations under MC 10-10-Memorandum Circular No. 04-08-88. It also submitted a letter dated December 20, 2002 of then NTC Commissioner 2003. (Emphasis added) Armi Jane R. Borje to PMSI stating as follows: Please be guided accordingly.  This refers to your letter dated December 16, 2002 requesting for regulatory guidance from this On December 22, 2003, the BLA rendered a decision  finding that PMSI infringed the broadcastingCommission in connection with the application and coverage of NTC Memorandum Circular No. 4-08-88, particularly rights and copyright of ABS-CBN and ordering it to permanently cease and desist from rebroadcasting Channels 2 andSection 6 thereof, on mandatory carriage of television broadcast signals, to the direct-to-home (DTH) pay television 23.services of Philippine Multi-Media System, Inc. (PMSI). On February 6, 2004, PMSI filed an appeal with the Office of the Director-General of the IPO which was Preliminarily, both DTH pay television and cable television services are broadcast services, the only difference being the docketed as Appeal No. 10-2004-0002. On December 23, 2004, it also filed with the Court of Appeals a “Motion tomedium of delivering such services (i.e. the former by satellite and the latter by cable). Both can carry broadcast signals
Withdraw Petition; Alternatively, Memorandum of the Petition for Certiorari” in CA-G.R. SP No. 71597, which was “the transmission by wireless means for the public reception of sounds or of images or of representations thereof; suchgranted in a resolution dated February 17, 2005. transmission by satellite is also ‘broadcasting’ where the means for decrypting are provided to the public by the On December 20, 2004, the Director-General of the IPO rendered a decision  in favor of PMSI, the broadcasting organization or with its consent.”dispositive portion of which states: Section 202.7 of the IP Code, thus, provides two instances wherein there is broadcasting, to wit: WHEREFORE, premises considered, the instant appeal is hereby GRANTED. Accordingly, Decision No. 1.The transmission by wireless means for the public reception of sounds or of images or of representations thereof;2003-01 dated 22 December 2003 of the Director of Bureau of Legal Affairs is hereby REVERSED and SET ASIDE. and Let a copy of this Decision be furnished the Director of the Bureau of Legal Affairs for appropriate action, and the 2.The transmission by satellite for the public reception of sounds or of images or of representations thereof where therecords be returned to her for proper disposition. The Documentation, Information and Technology Transfer Bureau is means for decrypting are provided to the public by the broadcasting organization or with its consent.also given a copy for library and reference purposes. It is under the second category that Appellant’s DTH satellite television service must be examined since it is satellite- SO ORDERED.  based. The elements of such category are as follows: Thus, ABS-CBN filed a petition for review with prayer for issuance of a temporary restraining order and 1.There is transmission of sounds or images or of representations thereof;writ of preliminary injunction with the Court of Appeals, which was docketed as CA-G.R. SP No. 88092. 2.The transmission is through satellite; On July 18, 2005, the Court of Appeals issued a temporary restraining order. Thereafter, ABS-CBN filed a petition for 3.The transmission is for public reception; andcontempt against PMSI for continuing to rebroadcast Channels 2 and 23 despite the restraining order. The case was 4.The means for decrypting are provided to the public by the broadcasting organization or with its consent.docketed as CA- G.R. SP No. 90762. It is only the presence of all the above elements can a determination that the DTH is broadcasting and consequently, On November 14, 2005, the Court of Appeals ordered the consolidation of CA-G.R. SP Nos. 88092 and 90762. rebroadcasting Appellee’s signals in violation of Sections 211 and 177 of the IP Code, may be arrived at. In the assailed Decision dated July 12, 2006, the Court of Appeals sustained the findings of the Director- Accordingly, this Office is of the view that the transmission contemplated under Section 202.7 of the IP CodeGeneral of the IPO and dismissed both petitions filed by ABS-CBN.  presupposes that the origin of the signals is the broadcaster. Hence, a program that is broadcasted is attributed to the ABS-CBN’s motion for reconsideration was denied, hence, this petition. broadcaster. In the same manner, the rebroadcasted program is attributed to the rebroadcaster. ABS-CBN contends that PMSI’s unauthorized rebroadcasting of Channels 2 and 23 is an infringement of its broadcasting In the case at hand, Appellant is not the origin nor does it claim to be the origin of the programs broadcasted by therights and copyright under the Intellectual Property Code (IP Code); that Memorandum Circular No. 04-08-88 Appellee. Appellant did not make and transmit on its own but merely carried the existing signals of the Appellee.excludes DTH satellite television operators; that the Court of Appeals’ interpretation of the must-carry rule violates When Appellant’s subscribers view Appellee’s programs in Channels 2 and 23, they know that the origin thereof was theSection 9 of Article III  of the Constitution because it allows the taking of property for public use without payment of Appellee.just compensation; that the Court of Appeals erred in dismissing the petition for contempt docketed as CA-G.R. SP No. Aptly, it is imperative to discern the nature of broadcasting. When a broadcaster transmits, the signals are scattered or90762 without requiring respondents to file comment. dispersed in the air. Anybody may pick-up these signals. There is no restriction as to its number, type or class of Respondents, on the other hand, argue that PMSI’s rebroadcasting of Channels 2 and 23 is sanctioned by recipients. To receive the signals, one is not required to subscribe or to pay any fee. One only has to have a receiver,Memorandum Circular No. 04-08-88; that the must-carry rule under the Memorandum Circular is a valid exercise of and in case of television signals, a television set, and to tune-in to the right channel/frequency. The definition ofpolice power; and that the Court of Appeals correctly dismissed CA-G.R. SP No. 90762 since it found no need to exercise broadcasting, wherein it is required that the transmission is wireless, all the more supports this discussion. Apparently,its power of contempt. the undiscriminating dispersal of signals in the air is possible only through wireless means. The use of wire in After a careful review of the facts and records of this case, we affirm the findings of the Director-General of the IPO and transmitting signals, such as cable television, limits the recipients to those who are connected. Unlike wirelessthe Court of Appeals. transmissions, in wire-based transmissions, it is not enough that one wants to be connected and possesses the There is no merit in ABS-CBN’s contention that PMSI violated its broadcaster’s rights under Section 211 of the IP Code equipment. The service provider, such as cable television companies may choose its subscribers.which provides in part: The only limitation to such dispersal of signals in the air is the technical capacity of the transmitters and other Chapter XIV equipment employed by the broadcaster. While the broadcaster may use a less powerful transmitter to limit itsBROADCASTING ORGANIZATIONS coverage, this is merely a business strategy or decision and not an inherent limitation when transmission is through Sec. 211. Scope of Right. - Subject to the provisions of Section 212, broadcasting organizations shall enjoy the exclusive cable.right to carry out, authorize or prevent any of the following acts: Accordingly, the nature of broadcasting is to scatter the signals in its widest area of coverage as possible. On this score, 211.1. The rebroadcasting of their broadcasts; it may be said that making public means that accessibility is undiscriminating as long as it [is] within the range of the xxxx transmitter and equipment of the broadcaster. That the medium through which the Appellant carries the Appellee’s Neither is PMSI guilty of infringement of ABS-CBN’s copyright under Section 177 of the IP Code which states that signal, that is via satellite, does not diminish the fact that it operates and functions as a cable television. It remains thatcopyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the public the Appellant’s transmission of signals via its DTH satellite television service cannot be considered within the purview ofperformance of the work (Section 177.6), and other communication to the public of the work (Section 177.7).  broadcasting. x x x Section 202.7 of the IP Code defines broadcasting as “the transmission by wireless means for the public reception of xxxxsounds or of images or of representations thereof; such transmission by satellite is also ‘broadcasting’ where the means This Office also finds no evidence on record showing that the Appellant has provided decrypting means to the publicfor decrypting are provided to the public by the broadcasting organization or with its consent.” indiscriminately. Considering the nature of this case, which is punitive in fact, the burden of proving the existence of On the other hand, rebroadcasting as defined in Article 3(g) of the International Convention for the Protection of the elements constituting the acts punishable rests on the shoulder of the complainant.Performers, Producers of Phonograms and Broadcasting Organizations, otherwise known as the 1961 Rome Convention, Accordingly, this Office finds that there is no rebroadcasting on the part of the Appellant of the Appellee’s programs onof which the Republic of the Philippines is a signatory, *21+ is “the simultaneous broadcasting by one broadcasting Channels 2 and 23, as defined under the Rome Convention. organization of the broadcast of another broadcasting organization.” Under the Rome Convention, rebroadcasting is “the simultaneous broadcasting by one broadcasting organization of the The Director-General of the IPO correctly found that PMSI is not engaged in rebroadcasting and thus cannot be broadcast of another broadcasting organization.” The Working Paper *23+ prepared by the Secretariat of the Standingconsidered to have infringed ABS-CBN’s broadcasting rights and copyright, thus: Committee on Copyright and Related Rights defines broadcasting organizations as “entities that take the financial and That the Appellant’s *herein respondent PMSI+ subscribers are able to view Appellee’s *herein petitioner ABS-CBN] editorial responsibility for the selection and arrangement of, and investment in, the transmitted content.” *24+programs (Channels 2 and 23) at the same time that the latter is broadcasting the same is undisputed. The question Evidently, PMSI would not qualify as a broadcasting organization because it does not have the aforementionedhowever is, would the Appellant in doing so be considered engaged in broadcasting. Section 202.7 of the IP Code states responsibilities imposed upon broadcasting organizations, such as ABS-CBN.that broadcasting means
ABS-CBN creates and transmits its own signals; PMSI merely carries such signals which the viewers receive in its the (franchise) grantee like the petitioner, private respondent and other TV station owners, shall provide at all timesunaltered form. PMSI does not produce, select, or determine the programs to be shown in Channels 2 and 23. sound and balanced programming and assist in the functions of public information and education.This is for the firstLikewise, it does not pass itself off as the origin or author of such programs. Insofar as Channels 2 and 23 are time that we have a structure that works to accomplish explicit state policy goals. concerned, PMSI merely retransmits the same in accordance with Memorandum Circular 04-08-88. With regard to its Indeed, intellectual property protection is merely a means towards the end of making society benefit from the creationpremium channels, it buys the channels from content providers and transmits on an as-is basis to its viewers. Clearly, of its men and women of talent and genius. This is the essence of intellectual property laws, and it explains why certainPMSI does not perform the functions of a broadcasting organization; thus, it cannot be said that it is engaged in products of ingenuity that are concealed from the public are outside the pale of protection afforded by the law. It alsorebroadcasting Channels 2 and 23. explains why the author or the creator enjoys no more rights than are consistent with public welfare.  The Director-General of the IPO and the Court of Appeals also correctly found that PMSI’s services are similar to a cable Further, as correctly observed by the Court of Appeals, the must-carry rule as well as the legislative franchises grantedtelevision system because the services it renders fall under cable “retransmission,” as described in the Working Paper, to both ABS-CBN and PMSI are in consonance with state policies enshrined in the Constitution, specifically Sections 9,to wit:  17,  and 24  of Article II on the Declaration of Principles and State Policies.  g.Cable Retransmission ABS-CBN was granted a legislative franchise under Republic Act No. 7966, Section 1 of which authorizes it “to construct, 47.When a radio or television program is being broadcast, it can be retransmitted to new audiences by means of cable operate and maintain, for commercial purposes and in the public interest, television and radio broadcasting in andor wire. In the early days of cable television, it was mainly used to improve signal reception, particularly in so-called throughout the Philippines x x x.” Section 4 thereof mandates that it “shall provide adequate public service time to“shadow zones,” or to distribute the signals in large buildings or building complexes. With improvements in technology, enable the government, through the said broadcasting stations, to reach the population on important public issues;cable operators now often receive signals from satellites before retransmitting them in an unaltered form to their provide at all times sound and balanced programming; promote public participation such as in communitysubscribers through cable. programming; assist in the functions of public information and education x x x.” 48.In principle, cable retransmission can be either simultaneous with the broadcast over-the-air or delayed (deferred PMSI was likewise granted a legislative franchise under Republic Act No. 8630, Section 4 of which similarly states that ittransmission) on the basis of a fixation or a reproduction of a fixation. Furthermore, they might be unaltered or altered, “shall provide adequate public service time to enable the government, through the said broadcasting stations, to reachfor example through replacement of commercials, etc. In general, however, the term “retransmission” seems to be the population on important public issues; provide at all times sound and balanced programming; promote publicreserved for such transmissions which are both simultaneous and unaltered. participation such as in community programming; assist in the functions of public information and education x x x.” 49.The Rome Convention does not grant rights against unauthorized cable retransmission. Without such a right, cable Section 5, paragraph 2 of the same law provides that “the radio spectrum is a finite resource that is a part of theoperators can retransmit both domestic and foreign over the air broadcasts simultaneously to their subscribers without national patrimony and the use thereof is a privilege conferred upon the grantee by the State and may be withdrawnpermission from the broadcasting organizations or other rightholders and without obligation to pay remuneration.  anytime, after due process.”(Emphasis added) In Telecom. & Broadcast Attys. of the Phils., Inc. v. COMELEC,  the Court held that a franchise is a mere privilege Thus, while the Rome Convention gives broadcasting organizations the right to authorize or prohibit the rebroadcasting which may be reasonably burdened with some form of public service. Thus:of its broadcast, however, this protection does not extend to cable retransmission. The retransmission of ABS-CBN’s All broadcasting, whether by radio or by television stations, is licensed by the government. Airwave frequencies have tosignals by PMSI – which functions essentially as a cable television – does not therefore constitute rebroadcasting in be allocated as there are more individuals who want to broadcast than there are frequencies to assign. A franchise isviolation of the former’s intellectual property rights under the IP Code. thus a privilege subject, among other things, to amendment by Congress in accordance with the constitutional provision It must be emphasized that the law on copyright is not absolute. The IP Code provides that: that “any such franchise or right granted . . . shall be subject to amendment, alteration or repeal by the Congress when Sec. 184. Limitations on Copyright. - the common good so requires.” 184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of xxxxcopyright: Indeed, provisions for COMELEC Time have been made by amendment of the franchises of radio and television xxxx broadcast stations and, until the present case was brought, such provisions had not been thought of as taking property The use made of a work by or under the direction or control of the Government, by the National Library or by without just compensation. Art. XII, §11 of the Constitution authorizes the amendment of franchises for “the commoneducational, scientific or professional institutions where such use is in the public interest and is compatible with fair good.” What better measure can be conceived for the common good than one for free air time for the benefit not onlyuse; of candidates but even more of the public, particularly the voters, so that they will be fully informed of the issues in an The carriage of ABS-CBN’s signals by virtue of the must-carry rule in Memorandum Circular No. 04-08-88 is under the election? “*I+t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”direction and control of the government though the NTC which is vested with exclusive jurisdiction to supervise, Nor indeed can there be any constitutional objection to the requirement that broadcast stations give free air time.regulate and control telecommunications and broadcast services/facilities in the Philippines.  The imposition of the Even in the United States, there are responsible scholars who believe that government controls on broadcast media canmust-carry rule is within the NTC’s power to promulgate rules and regulations, as public safety and interest may constitutionally be instituted to ensure diversity of views and attention to public affairs to further the system of freerequire, to encourage a larger and more effective use of communications, radio and television broadcasting facilities, expression. For this purpose, broadcast stations may be required to give free air time to candidates in an election. Thus,and to maintain effective competition among private entities in these activities whenever the Commission finds it Professor Cass R. Sunstein of the University of Chicago Law School, in urging reforms in regulations affecting thereasonably feasible.  As correctly observed by the Director-General of the IPO: broadcast industry, writes: Accordingly, the “Must-Carry Rule” under NTC Circular No. 4-08-88 falls under the foregoing category of limitations on xxxxcopyright. This Office agrees with the Appellant [herein respondent PMSI] that the “Must-Carry Rule” is in consonance In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves andwith the principles and objectives underlying Executive Order No. 436,  to wit: frequencies through which they transmit broadcast signals and images. They are merely given the temporary privilege The Filipino people must be given wider access to more sources of news, information, education, sports event and of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with theentertainment programs other than those provided for by mass media and afforded television programs to attain a well performance by the grantee of some form of public service. x x x informed, well-versed and culturally refined citizenry and enhance their socio-economic growth: There is likewise no merit to ABS-CBN’s claim that PMSI’s carriage of its signals is for a commercial purpose; that its WHEREAS, cable television (CATV) systems could support or supplement the services provided by television broadcast being the country’s top broadcasting company, the availability of its signals allegedly enhances PMSI’s attractiveness tofacilities, local and overseas, as the national information highway to the countryside.  potential customers;  or that the unauthorized carriage of its signals by PMSI has created competition between its The Court of Appeals likewise correctly observed that: Metro Manila and regional stations. The very intent and spirit of the NTC Circular will prevent a situation whereby station owners and a few networks ABS-CBN presented no substantial evidence to prove that PMSI carried its signals for profit; or that such carriagewould have unfettered power to make time available only to the highest bidders, to communicate only their own views adversely affected the business operations of its regional stations. Except for the testimonies of its witnesses,  noon public issues, people, and to permit on the air only those with whom they agreed – contrary to the state policy that studies, statistical data or information have been submitted in evidence.
Administrative charges cannot be based on mere speculation or conjecture. The complainant has the burden of There is likewise no merit to ABS-CBN’s contention that the Memorandum Circular excludes from its coverage DTHproving by substantial evidence the allegations in the complaint.  Mere allegation is not evidence, and is not television services such as those provided by PMSI. Section 6.2 of the Memorandum Circular requires all cableequivalent to proof.  television system operators operating in a community within Grade “A” or “B” contours to carry the television signals of Anyone in the country who owns a television set and antenna can receive ABS-CBN’s signals for free. Other the authorized television broadcast stations.  The rationale behind its issuance can be found in the whereas clausesbroadcasting organizations with free-to-air signals such as GMA-7, RPN-9, ABC-5, and IBC-13 can likewise be accessed which state:for free. No payment is required to view the said channels  because these broadcasting networks do not generate Whereas, Cable Television Systems or Community Antenna Television (CATV) have shown their ability to offerrevenue from subscription from their viewers but from airtime revenue from contracts with commercial advertisers and additional programming and to carry much improved broadcast signals in the remote areas, thereby enriching the livesproducers, as well as from direct sales. of the rest of the population through the dissemination of social, economic, educational information and cultural In contrast, cable and DTH television earn revenues from viewer subscription. In the case of PMSI, it offers its programs;customers premium paid channels from content providers like Star Movies, Star World, Jack TV, and AXN, among Whereas, the national government supports the promotes the orderly growth of the Cable Television industry withinothers, thus allowing its customers to go beyond the limits of “Free TV and Cable TV.” *43+ It does not advertise itself as the framework of a regulated fee enterprise, which is a hallmark of a democratic society;a local channel carrier because these local channels can be viewed with or without DTH television. Whereas, public interest so requires that monopolies in commercial mass media shall be regulated or prohibited, Relevantly, PMSI’s carriage of Channels 2 and 23 is material in arriving at the ratings and audience share of ABS-CBN hence, to achieve the same, the cable TV industry is made part of the broadcast media;and its programs. These ratings help commercial advertisers and producers decide whether to buy airtime from the Whereas, pursuant to Act 3846 as amended and Executive Order 205 granting the National Telecommunicationsnetwork. Thus, the must-carry rule is actually advantageous to the broadcasting networks because it provides them Commission the authority to set down rules and regulations in order to protect the public and promote the generalwith increased viewership which attracts commercial advertisers and producers. welfare, the National Telecommunications Commission hereby promulgates the following rules and regulations on On the other hand, the carriage of free-to-air signals imposes a burden to cable and DTH television providers such as Cable Television Systems;PMSI. PMSI uses none of ABS-CBN’s resources or equipment and carries the signals and shoulders the costs without any The policy of the Memorandum Circular is to carry improved signals in remote areas for the good of the general publicrecourse of charging.  Moreover, such carriage of signals takes up channel space which can otherwise be utilized for and to promote dissemination of information. In line with this policy, it is clear that DTH television should be deemedother premium paid channels. covered by the Memorandum Circular. Notwithstanding the different technologies employed, both DTH and cable There is no merit to ABS-CBN’s argument that PMSI’s carriage of Channels 2 and 23 resulted in competition between its television have the ability to carry improved signals and promote dissemination of information because they operateMetro Manila and regional stations. ABS-CBN is free to decide to pattern its regional programming in accordance with and function in the same way.perceived demands of the region; however, it cannot impose this kind of programming on the regional viewers who are In its December 20, 2002 letter,  the NTC explained that both DTH and cable television services are of a similaralso entitled to the free-to-air channels. It must be emphasized that, as a national broadcasting organization, one of nature, the only difference being the medium of delivering such services. They can carry broadcast signals to theABS-CBN’s responsibilities is to scatter its signals to the widest area of coverage as possible. That it should limit its remote areas and possess the capability to enrich the lives of the residents thereof through the dissemination of social,signal reach for the sole purpose of gaining profit for its regional stations undermines public interest and deprives the economic, educational information and cultural programs. Consequently, while the Memorandum Circular refers toviewers of their right to access to information. cable television, it should be understood as to include DTH television which provides essentially the same services. Indeed, television is a business; however, the welfare of the people must not be sacrificed in the pursuit of profit. The In Eastern Telecommunications Philippines, Inc. v. International Communication Corporation,  we held:right of the viewers and listeners to the most diverse choice of programs available is paramount.  The Director- The NTC, being the government agency entrusted with the regulation of activities coming under its special andGeneral correctly observed, thus: technical forte, and possessing the necessary rule-making power to implement its objectives, is in the best position to The “Must-Carry Rule” favors both broadcasting organizations and the public. It prevents cable television companies interpret its own rules, regulations and guidelines. The Court has consistently yielded and accorded great respect to thefrom excluding broadcasting organization especially in those places not reached by signal. Also, the rule prevents cable interpretation by administrative agencies of their own rules unless there is an error of law, abuse of power, lack oftelevision companies from depriving viewers in far-flung areas the enjoyment of programs available to city viewers. In jurisdiction or grave abuse of discretion clearly conflicting with the letter and spirit of the law. fact, this Office finds the rule more burdensome on the part of the cable television companies. The latter carries the With regard to the issue of the constitutionality of the must-carry rule, the Court finds that its resolution is nottelevision signals and shoulders the costs without any recourse of charging. On the other hand, the signals that are necessary in the disposition of the instant case. One of the essential requisites for a successful judicial inquiry intocarried by cable television companies are dispersed and scattered by the television stations and anybody with a constitutional questions is that the resolution of the constitutional question must be necessary in deciding the case. television set is free to pick them up. In Spouses Mirasol v. Court of Appeals,  we held: With its enormous resources and vaunted technological capabilities, Appellee’s *herein petitioner ABS-CBN] broadcast As a rule, the courts will not resolve the constitutionality of a law, if the controversy can be settled on other grounds.signals can reach almost every corner of the archipelago. That in spite of such capacity, it chooses to maintain regional The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the politicalstations, is a business decision. That the “Must-Carry Rule” adversely affects the profitability of maintaining such departments are valid, absent a clear and unmistakable showing to the contrary. To doubt is to sustain. Thisregional stations since there will be competition between them and its Metro Manila station is speculative and an presumption is based on the doctrine of separation of powers. This means that the measure had first been carefullyattempt to extrapolate the effects of the rule. As discussed above, Appellant’s DTH satellite television services is of studied by the legislative and executive departments and found to be in accord with the Constitution before it waslimited subscription. There was not even a showing on part of the Appellee the number of Appellant’s subscribers in finally enacted and approved. one region as compared to non-subscribing television owners. In any event, if this Office is to engage in conjecture, The instant case was instituted for violation of the IP Code and infringement of ABS-CBN’s broadcasting rights andsuch competition between the regional stations and the Metro Manila station will benefit the public as such copyright, which can be resolved without going into the constitutionality of Memorandum Circular No. 04-08-88. Ascompetition will most likely result in the production of better television programs.” held by the Court of Appeals, the only relevance of the circular in this case is whether or not compliance therewith All told, we find that the Court of Appeals correctly upheld the decision of the IPO Director-General that PMSI did not should be considered manifestation of lack of intent to commit infringement, and if it is, whether such lack of intent is ainfringe on ABS-CBN’s intellectual property rights under the IP Code. The findings of facts of administrative bodies valid defense against the complaint of petitioner. charged with their specific field of expertise, are afforded great weight by the courts, and in the absence of substantial The records show that petitioner assailed the constitutionality of Memorandum Circular No. 04-08-88 by way of ashowing that such findings are made from an erroneous estimation of the evidence presented, they are conclusive, and collateral attack before the Court of Appeals. In Philippine National Bank v. Palma,  we ruled that for reasons ofin the interest of stability of the governmental structure, should not be disturbed.  public policy, the constitutionality of a law cannot be collaterally attacked. A law is deemed valid unless declared null Moreover, the factual findings of the Court of Appeals are conclusive on the parties and are not reviewable by the and void by a competent court; more so when the issue has not been duly pleaded in the trial court. Supreme Court. They carry even more weight when the Court of Appeals affirms the factual findings of a lower fact- As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if not raised in thefinding body, as in the instant case. pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial court, it will not be considered on appeal.  In Philippine Veterans Bank v. Court of Appeals,  we held:
We decline to rule on the issue of constitutionality as all the requisites for the exercise of judicial review are not - C190 27 }present herein. Specifically, the question of constitutionality will not be passed upon by the Court unless, at the first - C240 rear 40 } - C240 front 41 } BAG 1opportunity, it is properly raised and presented in an appropriate case, adequately argued, and is necessary to a b) Polyvinyl Chloride Plasticdetermination of the case, particularly where the issue of constitutionality is the very lis mota presented. x x x  - C190 13 } Finally, we find that the dismissal of the petition for contempt filed by ABS-CBN is in order. c) Vehicle bearing cushion Indirect contempt may either be initiated (1) motu proprio by the court by issuing an order or any other formal charge - center bearing cushion 11 }requiring the respondent to show cause why he should not be punished for contempt or (2) by the filing of a verified Budder for C190 mold 8 } Diesel Moldpetition, complying with the requirements for filing initiatory pleadings. a) Mold for spring eye bushing rear 1 set ABS-CBN filed a verified petition before the Court of Appeals, which was docketed CA G.R. SP No. 90762, for PMSI’s b) Mold for spring eye bushing front 1 setalleged disobedience to the Resolution and Temporary Restraining Order, both dated July 18, 2005, issued in CA-G.R. SP c) Mold for spring eye bushing for C190 1 setNo. 88092. However, after the cases were consolidated, the Court of Appeals did not require PMSI to comment on the d) Mold for C240 rear 1 piece of the setpetition for contempt. It ruled on the merits of CA-G.R. SP No. 88092 and ordered the dismissal of both petitions. e) Mold for spring eye bushing for L300 2 sets ABS-CBN argues that the Court of Appeals erred in dismissing the petition for contempt without having ordered f) Mold for leaf spring eye bushing C190respondents to comment on the same. Consequently, it would have us reinstate CA-G.R. No. 90762 and order with metal 1 setrespondents to show cause why they should not be held in contempt. g) Mold for vehicle bearing cushion 1 set It bears stressing that the proceedings for punishment of indirect contempt are criminal in nature. The modes of The respondents filed a motion to quash the search warrants on the following grounds: 2. The copyright registrations were issued in violation of the Intellectual Property Code on the ground that:procedure and rules of evidence adopted in contempt proceedings are similar in nature to those used in criminal a) the subject matter of the registrations are not artistic or literary;prosecutions.  While it may be argued that the Court of Appeals should have ordered respondents to comment, b) the subject matter of the registrations are spare parts of automobiles meaning – there (sic) arethe issue has been rendered moot in light of our ruling on the merits. To order respondents to comment and have the original parts that they are designed to replace. Hence, they are not original.Court of Appeals conduct a hearing on the contempt charge when the main case has already been disposed of in favor The respondents averred that the works covered by the certificates issued by the National Library are not artistic in nature; they are considered automotive spare parts and pertain to technology. They aver that the models are not original,of PMSI would be circuitous. Where the issues have become moot, there is no justiciable controversy, thereby and as such are the proper subject of a patent, not copyright.rendering the resolution of the same of no practical use or value.  In opposing the motion, the petitioner averred that the court which issued the search warrants was not the proper forum in WHEREFORE, the petition is DENIED. The July 12, 2006 Decision of the Court of Appeals in CA-G.R. SP Nos. 88092 and which to articulate the issue of the validity of the copyrights issued to him. Citing the ruling of the Court in Malaloan v.90762, sustaining the findings of the Director-General of the Intellectual Property Office and dismissing the petitions Court of Appeals, the petitioner stated that a search warrant is merely a judicial process designed by the Rules offiled by ABS-CBN Broadcasting Corporation, and the December 11, 2006 Resolution denying the motion for Court in anticipation of a criminal case. Until his copyright was nullified in a proper proceeding, he enjoys rights of a registered owner/holder thereof.reconsideration, are AFFIRMED. On January 3, 2002, the trial court issued an Order granting the motion, and quashed the search warrant on its finding SO ORDERED. that there was no probable cause for its issuance. The court ruled that the work covered by the certificates issued to the petitioner pertained to solutions to technical problems, not literary and artistic as provided in Article 172 of theJESSIE G. CHING, petitioner, vs. WILLIAM M. SALINAS, SR., WILLIAM M. SALINAS, JR., JOSEPHINE L. Intellectual Property Code.SALINAS, JENNIFER Y. SALINAS, ALONTO SOLAIMAN SALLE, JOHN ERIC I. SALINAS, NOEL M. His motion for reconsideration of the order having been denied by the trial court‘s Order of February 14, 2002, theYABUT (Board of Directors and Officers of WILAWARE PRODUCT CORPORATION), respondents. petitioner filed a petition for certiorari in the CA, contending that the RTC had no jurisdiction to delve into and resolveDECISION the validity of the copyright certificates issued to him by the National Library. He insisted that his works are covered byCALLEJO, SR., J.: Sections 172.1 and 172.2 of the Intellectual Property Code. The petitioner averred that the copyright certificates areThis petition for review on certiorari assails the Decision and Resolution of the Court of Appeals (CA) in CA-G.R. prima facie evidence of its validity, citing the ruling of the United States Court of Appeals in Wildlife ExpressSP No. 70411 affirming the January 3, 2002 and February 14, 2002 Orders of the Regional Trial Court (RTC) of Corporation v. Carol Wright Sales, Inc. The petitioner asserted that the respondents failed to adduce evidence toManila, Branch 1, which quashed and set aside Search Warrant Nos. 01-2401 and 01-2402 granted in favor of petitioner support their motion to quash the search warrants. The petitioner noted that respondent William Salinas, Jr. was notJessie G. Ching. being honest, as he was able to secure a similar copyright registration of a similar product from the National Library onJessie G. Ching is the owner and general manager of Jeshicris Manufacturing Co., the maker and manufacturer of a January 14, 2002.Utility Model, described as ―Leaf Spring Eye Bushing for Automobile‖ made up of plastic. On September 26, 2003, the CA rendered judgment dismissing the petition on its finding that the RTC did not commitOn September 4, 2001, Ching and Joseph Yu were issued by the National Library Certificates of Copyright Registration any grave abuse of its discretion in issuing the assailed order, to wit:and Deposit of the said work described therein as ―Leaf Spring Eye Bushing for Automobile.‖ It is settled that preliminarily, there must be a finding that a specific offense must have been committed to justify theOn September 20, 2001, Ching requested the National Bureau of Investigation (NBI) for police/investigative assistance issuance of a search warrant. In a number of cases decided by the Supreme Court, the same is explicitly provided, thus:for the apprehension and prosecution of illegal manufacturers, producers and/or distributors of the works. ―The probable cause must be in connection with one specific offense, and the judge must, before issuing the warrant,After due investigation, the NBI filed applications for search warrants in the RTC of Manila against William Salinas, Sr. personally examine in the form of searching questions and answers, in writing and under oath, the complainant and anyand the officers and members of the Board of Directors of Wilaware Product Corporation. It was alleged that the witness he may produce, on facts personally known to them and attach to the record their sworn statements together withrespondents therein reproduced and distributed the said models penalized under Sections 177.1 and 177.3 of Republic Act any affidavit submitted.(R.A.) No. 8293. The applications sought the seizure of the following: ―In the determination of probable cause, the court must necessarily resolve whether or not an offense exists to justify the a.) Undetermined quantity of Leaf spring eye bushing for automobile that are made up of plastic issuance or quashal of the search warrant.‖ polypropylene; In the instant case, the petitioner is praying for the reinstatement of the search warrants issued, but subsequently quashed, b.) Undetermined quantity of Leaf spring eye bushing for automobile that are made up of polyvinyl chloride for the offense of Violation of Class Designation of Copyrightable Works under Section 177.1 in relation to Section 177.3 plastic; of Republic Act 8293, when the objects subject of the same, are patently not copyrightable. c.) Undetermined quantity of Vehicle bearing cushion that is made up of polyvinyl chloride plastic; It is worthy to state that the works protected under the Law on Copyright are: literary or artistic works (Sec. 172) and d.) Undetermined quantity of Dies and jigs, patterns and flasks used in the manufacture/fabrication of items a to derivative works (Sec. 173). The Leaf Spring Eye Bushing and Vehicle Bearing Cushion fall on neither classification. d; Accordingly, if, in the first place, the item subject of the petition is not entitled to be protected by the law on copyright, e.) Evidences of sale which include delivery receipts, invoices and official receipts. how can there be any violation?The RTC granted the application and issued Search Warrant Nos. 01-2401 and 01-2402 for the seizure of the aforecited The petitioner‘s motion for reconsideration of the said decision suffered the same fate. The petitioner forthwith filed thearticles. In the inventory submitted by the NBI agent, it appears that the following articles/items were seized based on present petition for review on certiorari, contending that the revocation of his copyright certificates should be raised in athe search warrants: direct action and not in a search warrant proceeding.Leaf Spring eye bushing The petitioner posits that even assuming ex argumenti that the trial court may resolve the validity of his copyright in a a) Plastic Polypropylene proceeding to quash a search warrant for allegedly infringing items, the RTC committed a grave abuse of its discretion when it declared that his works are not copyrightable in the first place. He claims that R.A. No. 8293, otherwise known
as the Intellectual Property Code of the Philippines, which took effect on January 1, 1998, provides in no uncertain terms material and substantial similarity between the two works. The applicant must thus demonstrate the existence and thethat copyright protection automatically attaches to a work by the sole fact of its creation, irrespective of its mode or form validity of his copyright because in the absence of copyright protection, even original creation may be freely copied.of expression, as well as of its content, quality or purpose. The law gives a non-inclusive definition of ―work‖ as By requesting the NBI to investigate and, if feasible, file an application for a search warrant for infringement under R.A.referring to original intellectual creations in the literary and artistic domain protected from the moment of their creation; No. 8293 against the respondents, the petitioner thereby authorized the RTC (in resolving the application), to delve intoand includes original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial and determine the validity of the copyright which he claimed he had over the utility models. The petitioner cannot seekdesign and other works of applied art under Section 172.1(h) of R.A. No. 8293. relief from the RTC based on his claim that he was the copyright owner over the utility models and, at the same time,As such, the petitioner insists, notwithstanding the classification of the works as either literary and/or artistic, the said repudiate the court‘s jurisdiction to ascertain the validity of his claim without running afoul to the doctrine of estoppel.law, likewise, encompasses works which may have a bearing on the utility aspect to which the petitioner‘s utility designs To discharge his burden, the applicant may present the certificate of registration covering the work or, in its absence,were classified. Moreover, according to the petitioner, what the Copyright Law protects is the author‘s intellectual other evidence. A copyright certificate provides prima facie evidence of originality which is one element of copyrightcreation, regardless of whether it is one with utilitarian functions or incorporated in a useful article produced on an validity. It constitutes prima facie evidence of both validity and ownership and the validity of the facts stated in theindustrial scale. certificate. The presumption of validity to a certificate of copyright registration merely orders the burden of proof.The petitioner also maintains that the law does not provide that the intended use or use in industry of an article eligible The applicant should not ordinarily be forced, in the first instance, to prove all the multiple facts that underline thefor patent bars or invalidates its registration under the Law on Copyright. The test of protection for the aesthetic is not validity of the copyright unless the respondent, effectively challenging them, shifts the burden of doing so to thebeauty and utility, but art for the copyright and invention of original and ornamental design for design patents. In like applicant. Indeed, Section 218.2 of R.A. No. 8293 provides:manner, the fact that his utility designs or models for articles of manufacture have been expressed in the field of 218.2. In an action under this Chapter:automotive parts, or based on something already in the public domain does not automatically remove them from the (a) Copyright shall be presumed to subsist in the work or other subject matter to which the action relates if theprotection of the Law on Copyright. defendant does not put in issue the question whether copyright subsists in the work or other subject matter; andThe petitioner faults the CA for ignoring Section 218 of R.A. No. 8293 which gives the same presumption to an affidavit (b) Where the subsistence of the copyright is established, the plaintiff shall be presumed to be the owner of theexecuted by an author who claims copyright ownership of his work. copyright if he claims to be the owner of the copyright and the defendant does not put in issue the question of hisThe petitioner adds that a finding of probable cause to justify the issuance of a search warrant means merely a reasonable ownership.suspicion of the commission of the offense. It is not equivalent to absolute certainty or a finding of actual and positive A certificate of registration creates no rebuttable presumption of copyright validity where other evidence in the recordcause. He assists that the determination of probable cause does not concern the issue of whether or not the alleged casts doubt on the question. In such a case, validity will not be presumed.work is copyrightable. He maintains that to justify a finding of probable cause in the issuance of a search warrant, it is To discharge his burden of probable cause for the issuance of a search warrant for violation of R.A. No. 8293, theenough that there exists a reasonable suspicion of the commission of the offense. petitioner-applicant submitted to the RTC Certificate of Copyright Registration Nos. 2001-197 and 2001-204 datedThe petitioner contends that he has in his favor the benefit of the presumption that his copyright is valid; hence, the September 3, 2001 and September 4, 2001, respectively, issued by the National Library covering work identified as Leafburden of overturning this presumption is on the alleged infringers, the respondents herein. But this burden cannot be Spring Eye Bushing for Automobile and Vehicle Bearing Cushion both classified under Section 172.1(h) of R.A. No.carried in a hearing on a proceeding to quash the search warrants, as the issue therein is whether there was probable cause 8293, to wit:for the issuance of the search warrant. The petitioner concludes that the issue of probable cause should be resolved SEC. 172. Literary and Artistic Works. – 172.1. Literary and artistic works, hereinafter referred to as ―works,‖ arewithout invalidating his copyright. original intellectual creations in the literary and artistic domain protected from the moment of their creation and shallIn their comment on the petition, the respondents aver that the work of the petitioner is essentially a technical solution to include in particular:the problem of wear and tear in automobiles, the substitution of materials, i.e., from rubber to plastic matter of polyvinyl ...chloride, an oil resistant soft texture plastic material strong enough to endure pressure brought about by the vibration of (h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrialthe counter bearing and thus brings bushings. Such work, the respondents assert, is the subject of copyright under design, and other works of applied art.Section 172.1 of R.A. No. 8293. The respondents posit that a technical solution in any field of human activity which is Related to the provision is Section 171.10, which provides that a ―work of applied art‖ is an artistic creation withnovel may be the subject of a patent, and not of a copyright. They insist that the certificates issued by the National utilitarian functions or incorporated in a useful article, whether made by hand or produced on an industrial scale.Library are only certifications that, at a point in time, a certain work was deposited in the said office. Furthermore, the But, as gleaned from the specifications appended to the application for a copyright certificate filed by the petitioner, theregistration of copyrights does not provide for automatic protection. Citing Section 218.2(b) of R.A. No. 8293, the said Leaf Spring Eye Bushing for Automobile is merely a utility model described as comprising a generally cylindricalrespondents aver that no copyright is said to exist if a party categorically questions its existence and legality. Moreover, body having a co-axial bore that is centrally located and provided with a perpendicular flange on one of its ends and aunder Section 2, Rule 7 of the Implementing Rules of R.A. No. 8293, the registration and deposit of work is not cylindrical metal jacket surrounding the peripheral walls of said body, with the bushing made of plastic that is eitherconclusive as to copyright outlay or the time of copyright or the right of the copyright owner. The respondents maintain polyvinyl chloride or polypropylene. Likewise, the Vehicle Bearing Cushion is illustrated as a bearing cushionthat a copyright exists only when the work is covered by the protection of R.A. No. 8293. comprising a generally semi-circular body having a central hole to secure a conventional bearing and a plurality of ridgesThe petition has no merit. provided therefore, with said cushion bearing being made of the same plastic materials. Plainly, these are not literaryThe RTC had jurisdiction to delve into and resolve the issue whether the petitioner‘s utility models are copyrightable and, or artistic works. They are not intellectual creations in the literary and artistic domain, or works of applied art. They areif so, whether he is the owner of a copyright over the said models. It bears stressing that upon the filing of the application certainly not ornamental designs or one having decorative quality or value.for search warrant, the RTC was duty-bound to determine whether probable cause existed, in accordance with Section 4, It bears stressing that the focus of copyright is the usefulness of the artistic design, and not its marketability. The centralRule 126 of the Rules of Criminal Procedure: inquiry is whether the article is a work of art. Works for applied art include all original pictorials, graphics, andSEC. 4. Requisite for issuing search warrant. – A search warrant shall not issue but upon probable cause in connection sculptural works that are intended to be or have been embodied in useful article regardless of factors such as masswith one specific offense to be determined personally by the judge after examination under oath or affirmation of the production, commercial exploitation, and the potential availability of design patent protection.complainant and the witnesses he may produce, and, particularly, describing the place to be searched and the things to be As gleaned from the description of the models and their objectives, these articles are useful articles which are defined asseized. one having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to conveyIn Solid Triangle Sales Corporation v. The Sheriff of RTC QC, Br. 93, the Court held that in the determination of information. Indeed, while works of applied art, original intellectual, literary and artistic works are copyrightable, usefulprobable cause, the court must necessarily resolve whether or not an offense exists to justify the issuance of a search articles and works of industrial design are not. A useful article may be copyrightable only if and only to the extentwarrant or the quashal of one already issued by the court. Indeed, probable cause is deemed to exist only where facts and that such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and arecircumstances exist which could lead a reasonably cautious and prudent man to believe that an offense has been capable of existing independently of the utilitarian aspects of the article.committed or is being committed. Besides, in Section 3, Rule 126 of the Rules of Criminal Procedure, a search warrant We agree with the contention of the petitioner (citing Section 171.10 of R.A. No. 8293), that the author‘s intellectualmay be issued for the search and seizure of personal property (a) subject of the offense; (b) stolen or embezzled and other creation, regardless of whether it is a creation with utilitarian functions or incorporated in a useful article produced on anproceeds or fruits of the offense; or (c) used or intended to be used as the means of committing an offense. industrial scale, is protected by copyright law. However, the law refers to a ―work of applied art which is an artisticThe RTC is mandated under the Constitution and Rules of Criminal Procedure to determine probable cause. The court creation.‖ It bears stressing that there is no copyright protection for works of applied art or industrial design which havecannot abdicate its constitutional obligation by refusing to determine whether an offense has been committed. The aesthetic or artistic features that cannot be identified separately from the utilitarian aspects of the article. Functionalabsence of probable cause will cause the outright nullification of the search warrant. components of useful articles, no matter how artistically designed, have generally been denied copyright protection unlessFor the RTC to determine whether the crime for infringement under R.A. No. 8293 as alleged in an application is they are separable from the useful article.committed, the petitioner-applicant was burdened to prove that (a) respondents Jessie Ching and Joseph Yu were the In this case, the petitioner‘s models are not works of applied art, nor artistic works. They are utility models, usefulowners of copyrighted material; and (b) the copyrighted material was being copied and distributed by the respondents. articles, albeit with no artistic design or value. Thus, the petitioner described the utility model as follows:Thus, the ownership of a valid copyright is essential. LEAF SPRING EYE BUSHING FOR AUTOMOBILEOwnership of copyrighted material is shown by proof of originality and copyrightability. By originality is meant that the Known bushings inserted to leaf-spring eye to hold leaf-springs of automobile are made of hard rubber. These rubbermaterial was not copied, and evidences at least minimal creativity; that it was independently created by the author and bushings after a time, upon subjecting them to so much or intermittent pressure would eventually wore (sic) out thatthat it possesses at least same minimal degree of creativity. Copying is shown by proof of access to copyrighted would cause the wobbling of the leaf spring.
The primary object of this utility model, therefore, is to provide a leaf-spring eye bushing for automobile that is made up reckoned from the date of the application; and third, the provisions on utility model dispense with its substantiveof plastic. examination and prefer for a less complicated system.Another object of this utility model is to provide a leaf-spring eye bushing for automobiles made of polyvinyl chloride, an Being plain automotive spare parts that must conform to the original structural design of the components they seek tooil resistant soft texture plastic or polypropylene, a hard plastic, yet both causes cushion to the leaf spring, yet strong replace, the Leaf Spring Eye Bushing and Vehicle Bearing Cushion are not ornamental. They lack the decorative qualityenough to endure pressure brought about by the up and down movement of said leaf spring. or value that must characterize authentic works of applied art. They are not even artistic creations with incidentalYet, an object of this utility model is to provide a leaf-spring eye bushing for automobiles that has a much longer life span utilitarian functions or works incorporated in a useful article. In actuality, the personal properties described in the searchthan the rubber bushings. warrants are mechanical works, the principal function of which is utility sans any aesthetic embellishment.Still an object of this utility model is to provide a leaf-spring eye bushing for automobiles that has a very simple Neither are we to regard the Leaf Spring Eye Bushing and Vehicle Bearing Cushion as included in the catch-all phraseconstruction and can be made using simple and ordinary molding equipment. ―other literary, scholarly, scientific and artistic works‖ in Section 172.1(a) of R.A. No. 8293. Applying the principle ofA further object of this utility model is to provide a leaf-spring eye bushing for automobile that is supplied with a metal ejusdem generis which states that ―where a statute describes things of a particular class or kind accompanied by words ofjacket to reinforce the plastic eye bushing when in engaged with the steel material of the leaf spring. a generic character, the generic word will usually be limited to things of a similar nature with those particularlyThese and other objects and advantages will come to view and be understood upon a reading of the detailed description enumerated, unless there be something in the context of the state which would repel such inference,‖ the Leaf Springwhen taken in conjunction with the accompanying drawings. Eye Bushing and Vehicle Bearing Cushion are not copyrightable, being not of the same kind and nature as the worksFigure 1 is an exploded perspective of a leaf-spring eye bushing according to the present utility model; enumerated in Section 172 of R.A. No. 8293.Figure 2 is a sectional view taken along line 2-2 of Fig. 1; No copyright granted by law can be said to arise in favor of the petitioner despite the issuance of the certificates ofFigure 3 is a longitudinal sectional view of another embodiment of this utility model; copyright registration and the deposit of the Leaf Spring Eye Bushing and Vehicle Bearing Cushion. Indeed, in Joaquin,Figure 4 is a perspective view of a third embodiment; and Jr. v. Drilon and Pearl & Dean (Phil.), Incorporated v. Shoemart, Incorporated, the Court ruled that:Figure 5 is a sectional view thereof. Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by theReferring now to the several views of the drawings wherein like reference numerals designated same parts throughout, statute, and not simply a pre-existing right regulated by it. Being a statutory grant, the rights are only such as the statutethere is shown a utility model for a leaf-spring eye bushing for automobile generally designated as reference numeral 10. confers, and may be obtained and enjoyed only with respect to the subjects and by the persons, and on terms andSaid leaf-spring eye bushing 10 comprises a generally cylindrical body 11 having a co-axial bore 12 centrally provided conditions specified in the statute. Accordingly, it can cover only the works falling within the statutory enumeration orthereof. description.As shown in Figs. 1 and 2, said leaf-spring eye bushing 10 is provided with a perpendicular flange 13 on one of its ends That the works of the petitioner may be the proper subject of a patent does not entitle him to the issuance of a searchand a cylindrical metal jacket 14 surrounding the peripheral walls 15 of said body 11. When said leaf-spring bushing 10 warrant for violation of copyright laws. In Kho v. Court of Appeals and Pearl & Dean (Phil.), Incorporated v.is installed, the metal jacket 14 acts with the leaf-spring eye (not shown), which is also made of steel or cast steel. In Shoemart, Incorporated, the Court ruled that ―these copyright and patent rights are completely distinct and separateeffect, the bushing 10 will not be directly in contact with steel, but rather the metal jacket, making the life of the bushing from one another, and the protection afforded by one cannot be used interchangeably to cover items or works that10 longer than those without the metal jacket. exclusively pertain to the others.‖ The Court expounded further, thus:In Figure 2, the bushing 10 as shown is made of plastic, preferably polyvinyl chloride, an oil resistant soft texture plastic Trademark, copyright and patents are different intellectual property rights that cannot be interchanged with one another.or a hard polypropylene plastic, both are capable to endure the pressure applied thereto, and, in effect, would lengthen the A trademark is any visible sign capable of distinguishing the goods (trademark) or services (service mark) of anlife and replacement therefor. enterprise and shall include a stamped or marked container of goods. In relation thereto, a trade name means the name orFigure 3, on the other hand, shows the walls 16 of the co-axial bore 12 of said bushing 10 is insertably provided with a designation identifying or distinguishing an enterprise. Meanwhile, the scope of a copyright is confined to literary andsteel tube 17 to reinforce the inner portion thereof. This steel tube 17 accommodates or engages with the leaf-spring bolt artistic works which are original intellectual creations in the literary and artistic domain protected from the moment of(not shown) connecting the leaf spring and the automobile‘s chassis. their creation. Patentable inventions, on the other hand, refer to any technical solution of a problem in any field of humanFigures 4 and 5 show another embodiment wherein the leaf eye bushing 10 is elongated and cylindrical as to its activity which is new, involves an inventive step and is industrially applicable.construction. Said another embodiment is also made of polypropylene or polyvinyl chloride plastic material. The steel The petitioner cannot find solace in the ruling of the United States Supreme Court in Mazer v. Stein to buttress histube 17 and metal jacket 14 may also be applied to this embodiment as an option thereof. petition. In that case, the artifacts involved in that case were statuettes of dancing male and female figures made of semi- VEHICLE BEARING CUSHION vitreous china. The controversy therein centered on the fact that although copyrighted as ―works of art,‖ the statuettesKnown bearing cushions inserted to bearing housings for vehicle propeller shafts are made of hard rubber. These rubber were intended for use and used as bases for table lamps, with electric wiring, sockets and lampshades attached. The issuebushings after a time, upon subjecting them to so much or intermittent pressure would eventually be worn out that would raised was whether the statuettes were copyright protected in the United States, considering that the copyright applicantcause the wobbling of the center bearing. intended primarily to use them as lamp bases to be made and sold in quantity, and carried such intentions into effect. AtThe primary object of this utility model therefore is to provide a vehicle-bearing cushion that is made up of plastic. that time, the Copyright Office interpreted the 1909 Copyright Act to cover works of artistic craftsmanship insofar asAnother object of this utility model is to provide a vehicle bearing cushion made of polyvinyl chloride, an oil resistant their form, but not the utilitarian aspects, were concerned. After reviewing the history and intent of the US Congress onsoft texture plastic material which causes cushion to the propeller‘s center bearing, yet strong enough to endure pressure its copyright legislation and the interpretation of the copyright office, the US Supreme Court declared that the statuettesbrought about by the vibration of the center bearing. were held copyrightable works of art or models or designs for works of art. The High Court ruled that:Yet, an object of this utility model is to provide a vehicle-bearing cushion that has a much longer life span than rubber ―Works of art (Class G) – (a) – In General. This class includes works of artistic craftsmanship, in so far as their form butbushings. not their mechanical or utilitarian aspects are concerned, such as artistic jewelry, enamels, glassware, and tapestries, asStill an object of this utility model is to provide a vehicle bearing cushion that has a very simple construction and can be well as all works belonging to the fine arts, such as paintings, drawings and sculpture. …‖made using simple and ordinary molding equipment. So we have a contemporaneous and long-continued construction of the statutes by the agency charged to administer themThese and other objects and advantages will come to view and be understood upon a reading of the detailed description that would allow the registration of such a statuette as is in question here.when taken in conjunction with the accompanying drawings. The High Court went on to state that ―[t]he dichotomy of protection for the aesthetic is not beauty and utility but art forFigure 1 is a perspective view of the present utility model for a vehicle-bearing cushion; and the copyright and the invention of original and ornamental design for design patents.‖ Significantly, the copyright officeFigure 2 is a sectional view thereof. promulgated a rule to implement Mazer to wit:Referring now to the several views of the drawing, wherein like reference numeral designate same parts throughout, there … [I]f ―the sole intrinsic function of an article is its utility, the fact that the work is unique and attractively shaped willis shown a utility model for a vehicle-bearing cushion generally designated as reference numeral 10. not qualify it as a work of art.‖Said bearing cushion 10 comprises of a generally semi-circular body 11, having central hole 12 to house a conventional In this case, the bushing and cushion are not works of art. They are, as the petitioner himself admitted, utility modelsbearing (not shown). As shown in Figure 1, said body 11 is provided with a plurality of ridges 13 which serves which may be the subject of a patent.reinforcing means thereof. IN LIGHT OF ALL THE FOREGOING, the instant petition is hereby DENIED for lack of merit. The assailedThe subject bearing cushion 10 is made of polyvinyl chloride, a soft texture oil and chemical resistant plastic material Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 70411 are AFFIRMED. Search Warrant Nos. 01-which is strong, durable and capable of enduring severe pressure from the center bearing brought about by the rotating 2401 and 01-2402 issued on October 15, 2001 are ANNULLED AND SET ASIDE. Costs against the petitioner.movement of the propeller shaft of the vehicle. SO ORDERED.A utility model is a technical solution to a problem in any field of human activity which is new and industrially Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.applicable. It may be, or may relate to, a product, or process, or an improvement of any of the aforesaid. Essentially,a utility model refers to an invention in the mechanical field. This is the reason why its object is sometimes described as EN BANCa device or useful object. A utility model varies from an invention, for which a patent for invention is, likewise, [G.R. No. 110318. August 28, 1996]available, on at least three aspects: first, the requisite of ―inventive step‖ in a patent for invention is not required;second, the maximum term of protection is only seven years compared to a patent which is twenty years, both COLUMBIA PICTURES, INC., ORION PICTURES CORPORATION, PARAMOUNT PICTURES CORPORATION, TWENTIETH CENTURY FOX FILM CORPORATION, UNITED ARTISTS CORPORATION, UNIVERSAL CITY STUDIOS, INC., THE WALT