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[G.R. No. 108946. January 28, 1999.

]
FRANCISCO G. JOAQUIN, JR., and BJ PRODUCTIONS, INC., petitioners, vs. HONORABLE
FRANKLIN DRILON, GABRIEL ZOSA, WILLIAM ESPOSO, FELIPE MEDINA, JR., and CASEY
FRANCISCO, respondents.

Medel Macam del Rosario Collado and Polines for petitioners.
Angelo Medina for F. Medina, Jr.
Atienza, Tabora, del Rosario & Salvador for W. Esposo.
Francisco L. Rosario, Jr. for Casey Francisco.
De Borja Medialdea Ata Bello Guevarra & Serapio for G. Zosa.
SYNOPSIS
Petitioner BJ Productions, Inc. (BJPI) is the holder/grantee of Certificate of Copyright No. M922 dated
January 28, 1971 of Rhoda and Me, a dating game show aired from 1970 to 1977. In 1973, petitioner BJPI
submitted to the National Library an addendum to its certificate of copyright specifying the show's format
and style presentation. In 1991, petitioner Francisco Joaquin, Jr., president of BJPI, saw on RPN 9 an
episode of It's a Date. He immediately protested the airing of the show through a letter sent to Grabriel M.
Zosa, president and general manager of IXL Productions, Inc., the producer of It's a Date. Petitioner
Joaquin informed respondent, Zosa of a copyright toRhoda and Me and demanded that IXL discontinue
airing It's a Date. Respondent Zosa apologized to Joaquin, but continued airing the show. Zosa also sought
to register IXL's copyright to the first episode of It's a Date for which a certificate of copyright was issued
by the National Library on August 14, 1991. With these developments, petitioners herein filed a complaint
against Zosa and other RPN Channel 9 officers as a result of which an information for violation of P.D. No.
49 was filed before the Regional Trial Court of Quezon City. Zosa appealed to the Department of Justice.
The Secretary of Justice reversed the prosecutor's findings and directed the dismissal of the case. Petitioner
Joaquin filed a motion for reconsideration, but it was denied by the Secretary of Justice. Hence, this
petition. Both public and private respondents maintained that petitioners failed to establish the existence of
probable cause due to their failure to present the copyrighted master videotape of Rhoda and Me. They
contended that BJPl's copyright covers only a specific episode of Rhosa and Me and that the formats or
concepts of dating game shows were not covered by the copyright protection under P.D. No. 49.
The Supreme Court ruled that BJPI's copyright covered audio-visual recordings of every episode of Rhoda
and Me, as falling within the class of works mentioned in P.D. No. 49. The copyright, however, does not
extend to the general concept or format of its dating game show. Accordingly, by the very nature of the
subject of petitioner BJPI's copyright, the investigating prosecutor should have been given the opportunity
to compare the videotapes of the two shows. Mere description by words of the general format of the two
dating game shows is insufficient; the presentation of the master videotape in evidence was indispensable
to the determination of the existence of probable cause. The petition was therefore dismissed. SEIDAC
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; AUTHORITY OF THE STATE
PROSECUTOR, SUBJECT TO THE CONTROL OF THE SECRETARY OF JUSTICE. — A preliminary investigation
falls under the authority of the state prosecutor who is given by law the power to direct and control criminal
actions. He is, however, subject to the control of the Secretary of Justice. Thus, Rule 112, Sec. 4 of the
Revised Rules of Criminal Procedure, provides: SEC. 4. Duty of investigating fiscal. — If the investigating
fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding
1

FORMAT OR MECHANICS OF A TELEVISION SHOW IS NOT INCLUDED IN THE LIST OF PROTECTED WORKS. CONSTRUED. Otherwise. No. no protection shall extend. illustrated or embodied in a work. the format of a show is not copyrightable. without conducting another preliminary investigation. by himself. method of operation. copyright in published works is purely a statutory creation. (C) Lectures. (B) Periodicals. INTELLECTUAL PROPERTY LAW. concept. the 2 . although unassigned. the new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides: SEC. — Notwithstanding the provisions of Sections 172 and 173.D. regardless of the form in which it is described. P. Section 2 of P. for the purpose of determining whether there is probable cause for filing cases in court. He must make his own finding of probable cause and is not confined to the issues raised by the parties during preliminary investigation. news of the day and other miscellaneous facts having the character of mere items of press information. immediately informing the parties of said action. his findings are not subject to review unless shown to have been made with grave abuse. Being a statutory grant. Regardless of the historical viewpoint. system. The latter shall take appropriate action thereon within ten (10) days from receipt thereof. 49. file the corresponding information against the respondent or direct any other assistant fiscal or state prosecutor to do so. If upon petition by a proper party. the latter may. explained. (E) Dramatic or dramatico-musical compositions. directories. ID. including pamphlets and newspaper. in enumerating what are subject to copyright. as well as any official translation thereof. sermons. 175. or discovery. Where the investigating assistant fiscal recommends the dismissal of the case but his findings are reversed by the provincial or city fiscal or chief state prosecutor on the ground that a probable cause exists. discovery or mere data as such.information. an authorized officer. is purely a statutory right. The copyright does not extend to an idea. in the strict sense of the term. and on terms and conditions specified in the statute. or as shown by the record. . . subsist with respect to any of the following classes of works: (A) Books. procedure. — To begin with. dissertations prepared for oral delivery. (D) Letters. he shall forward the records of the case to the provincial or city fiscal or chief state prosecutor within five (5) days from his resolution. choreographic works and entertainments in dumb shows. ID. ID. and gazetteers. principle. He shall certify under oath that he. otherwise known as the DECREE ON INTELLECTUAL PROPERTY. from the moment of creation.. that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof. to wit: Section 2. or any official text of a legislative. the rights are only such as the statute confers. and may be obtained and enjoyed only with respect to the subjects and by the persons. including composite and cyclopedic works. . 49. has personally examined the complainant and his witnesses. Since . explained. The rights granted by this Decree shall. No. and not simply a pre-existing right regulated by the statute. . that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence. addresses. manuscripts. method or operation. refers to finished works and not to concepts. he shall recommend dismissal of the complaint. 3. Moreover. COMMERCIAL LAW. process. . COPYRIGHT. even if they are expressed.D. In either case.. procedure. administrative or legal nature. concept. Section 2. Thus. the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor.. 2. it is authoritatively settled in the United States that there is no copyright except that which is both created and secured by act of Congress. the Secretary of Justice is not precluded from considering errors. a copyright may be obtained only for a work falling within the statutory enumeration or description. illustrated. he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information. principle. or embodied in such work. No complaint or information may be filed or dismissed by an investigating fiscal without the prior written authority approval of the provincial or city fiscal or chief state prosecutor. under this law. — Copyright. enumerates the classes of work entitled to copyright protection. It is a new or independent right granted by the statute. to any idea. system. In reviewing resolutions of prosecutors. Unprotected Subject Matter.

et al. and other works of applied art. No. For this reason. In a letter. and charts. 1992. the same to be protected as such in accordance with Section 8 of this Decree. 8293). (P) Dramatizations. saw on RPN Channel 9 an episode of It's a Date. (L) Photographic works and works produced by a process analogous to photography. architecture. Meanwhile. the protection afforded by the law cannot be extended to cover them.acting form of which is fixed in writing or otherwise. Q-92-27854. an information for violation of P. (G) Works of drawing. Inc. 1991. models or designs for works of art." and its resolution. and Casey Francisco. (I) Original ornamental designs or models for articles of manufacture. 1992. private respondent Zosa sought to register IXL's copyright to the first episode of It's a Date for which it was issued by the National Library a certificate of copyright on August 14. labels.D. Upon complaint by petitioners. and other works of art. 49. denying petitioner Joaquin's motion for reconsideration. v. 1991. On July 14. private respondent Zosa apologized to petitioner Joaquin and requested a meeting to discuss a possible settlement. 1971. (BJPI) is the holder/grantee of Certificate of Copyright No. 1973. (J) Maps. Petitioners seek to annul the resolution of the Department of Justice. informing Zosa that BJPI had a copyright to Rhoda and Me and demanding that IXL discontinue airing It's a Date. The format or mechanics of a television show is not included in the list of protected works in Section 2 of P. adaptions. president of BJPI. No. if IXL did not comply. continued airing It's a Date. (K) Drawings or plastic works of a scientific or technical character. Jr. City Prosecutor of Quezon City and Francisco Joaquin. 49 was filed against private respondent Zosa together with certain officers of RPN Channel 9. sculpture. (O) Prints. IXL. 3 . dated January 28.D. arrangements and other alterations of literary. Inc. On June 28. which was produced by IXL Productions. (IXL). which shall be protected as provided in Section 8 of this Decree. abridgements. petitioner Francisco Joaquin. whether or not patentable. 1991 in which he reiterated his demand and warned that. a dating game show aired from 1970 to 1977. engraving. scholarly. while watching television. scholarly. J p: This is a petition for certiorari. No. petitioner BJPI submitted to the National Library an addendum to its certificate of copyright specifying the show's format and style of presentation. plans. This provision is substantially the same as Section 172 of the INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES (R. dated July 19. or artistic works or of works referred to in Section 9 of this Decree which by reason of the selection and arrangement of their contents constitute intellectual creations. dated August 12. LLphil Petitioner BJ Productions. musical or artistic works or of works of the Philippine government as herein defined. in Criminal Case No. scientific and artistic works. lithography. he wrote a letter to private respondent Gabriel M. namely. lantern slides. tags. 1991. prompting petitioner Joaquin to send a second letter on July 25. translations. Zosa. dated December 3. with or without words. (F) Musical compositions. in the Regional Trial Court of Quezon City where it was docketed as Criminal Case No. and box wraps. however. pictorial illustrations advertising copies. William Esposo. (R) Other literary. Felipe Medina. painting. On July 18.. president and general manager of IXL. (H) Reproductions of work of art. he would endorse the matter to his attorneys for proper legal action.A. Jr. (N) Computer programs. of Rhoda and Me. (Q) Collections of literary. entitled "Gabriel Zosa. (M) Cinematographic works and works produced by a process analogous to cinematography or any process for making audiovisual recordings.. 1991. sketches. M922. ETDAaC DECISION MENDOZA.

therefore. The public respondent gravely abused his discretion amounting to lack of jurisdiction when he arrogated unto himself the determination of what is copyrightable — an issue which is exclusively within the jurisdiction of the regional trial court to assess in a proper proceeding. cda 4 . has personally examined the complainant and his witnesses. that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence. Non-Assignment of Error Petitioners claim that their failure to submit the copyrighted master videotape of the television show Rhoda and Me was not raised in issue by private respondents during the preliminary investigation and. this petition. No complaint or information may be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal or chief state prosecutor. he shall prepare the resolution and corresponding information. 49. They contend that petitioner BJPI's copyright covers only a specific episode of Rhoda and Me and that the formats or concepts of dating game shows are not covered by copyright protection under P. he shall recommend dismissal of the complaint. Duty of investigating fiscal. 1992. Hence. or as shown by the record. Both public and private respondents maintain that petitioners failed to establish the existence of probable cause due to their failure to present the copyrighted master videotape of Rhoda and Me. file the corresponding information against the respondent or direct any other assistant fiscal or state prosecutor to do so. Otherwise. it was error for the Secretary of Justice to reverse the investigating prosecutor's finding of probable cause on this ground. §4 of the Revised Rules of Criminal Procedure. Where the investigating assistant fiscal recommends the dismissal of the case but his findings are reversed by the provincial or city fiscal or chief state prosecutor on the ground that a probable cause exists. D. the latter may. that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof. However. Thus. He shall certify under oath that he. Petitioners contend that: 1. but his motion was denied by respondent Secretary of Justice on December 3. 1 Petitioner Joaquin filed a motion for reconsideration. Rule 112. provides: SEC. The public respondent gravely abused his discretion amounting to lack of jurisdiction when he invoked non-presentation of the master tape as being fatal to the existence of probable cause to prove infringement. however. by himself. respondent Secretary of Justice Franklin M. The latter shall take appropriate action thereon within ten (10) days from receipt thereof. subject to the control of the Secretary of Justice. Drilon reversed the Assistant City Prosecutor's findings and directed him to move for the dismissal of the case against private respondents.92-27854 and assigned to Branch 104 thereof. he shall forward the records of the case to the provincial or city fiscal or chief state prosecutor within five (5) days from his resolution. 1992. In either case. On August 12. 2. — If the investigating fiscal finds cause to hold the respondent for trial. No. private respondent Zosa sought a review of the resolution of the Assistant City Prosecutor before the Department of Justice. immediately informing the parties of said action. 2 He is. without conducting another preliminary investigation. 4. A preliminary investigation falls under the authority of the state prosecutor who is given by law the power to direct and control criminal actions. despite the fact that private respondents never raised the same as a controverted issue. an authorized officer.

If upon petition by a proper party. however. They contend that 20th Century Fox Film Corporation v. The trial court found that the affidavits of NBI agents. to make. of copyrightable materials as defined and enumerated in Section 2 of P. the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor. No. for the purpose of determining whether there is probable cause for filing cases in court. in whole or in part.'" 5 The case of 20th Century Fox Film Corporation involved raids conducted on various videotape outlets allegedly selling or renting out "pirated" videotapes. The court cannot presume that duplicate or copied tapes were necessarily reproduced from master tapes that it owns. a non-copyrightable material. he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information. is inapplicable to the case at bar because in the present case. Accordingly. Presentation of Master Tape Petitioners claim that respondent Secretary of Justice gravely abused his discretion in ruling that the master videotape should have been presented in order to determine whether there was probable cause for copyright infringement. the idea of a dating game show is. however. concepts. 3(Emphasis added.D. 49. Court of Appeals. or schemes in their abstract form clearly do not fall within the class of works or materials susceptible of copyright registration as provided in PD. was necessary for the validity of search warrants against those who have in their possession the pirated films. and not the Secretary of Justice. given in support of the application for the search warrant. the Secretary of Justice is not precluded from considering errors. although unassigned.) It is indeed true that the question whether the format or mechanics of petitioners' television show is entitled to copyright protection is a legal question for the court to make. In doing so in this case. this Court sustained the action of the trial court and ruled: 6 The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly copied. Opinion of the Secretary of Justice Petitioners contend. were insufficient without the master tape. 5 . They assail the following portion of the resolution of the respondent Secretary of Justice: [T]he essence of copyright infringement is the copying. Moreover. that the determination of the question whether the format or mechanics of a show is entitled to copyright protection is for the court. in the opinion of this Office. He must make his own finding of probable cause and is not confined to the issues raised by the parties during preliminary investigation. formats. he did not commit any grave error. 49. No. In reviewing resolutions of prosecutors. his findings are not subject to review unless shown to have been made with grave abuse. 4 on which respondent Secretary of Justice relied in reversing the resolution of the investigating prosecutor. the trial court lifted the search warrants it had previously issued against the defendants. however. The petitioner's argument to the effect that the presentation of the master tapes at the time of application may not be necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause exists to justify the issuance of the search warrants is not meritorious. This does not. the parties presented sufficient evidence which clearly establish "linkages between the copyrighted show 'Rhoda and Me' and the infringing TV show 'It's a Date. preclude respondent Secretary of Justice from making a preliminary determination of this question in resolving whether there is probable cause for filing the case in court. Apart from the manner in which it is actually expressed. Ideas. On petition for review.

49. same of one gender (searcher) appears on one side of a divider. while three (3) unmarried participants of the other gender are on the other side of the divider. Unmarried participant a.The application for search warrants was directed against video tape outlets which allegedly were engaged in the unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P. This linkage of the copyrighted films to the pirated films must be established to satisfy the requirements of probable cause. Hence. the substance of the television productions complainant's "RHODA AND ME" and Zosa's "IT'S A DATE" is that two matches are made between a male and a female. This ruling was qualified in the later case of Columbia Pictures.D. both single. 8 In the case at bar. The essence of a copyright infringement is the similarity or at least substantial similarity of the purported pirated works to the copyrighted work. the applicant must present to the court the copyrighted films to compare them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an unauthorized reproduction of the former. during the preliminary investigation. the supposed pronunciamento in said case regarding the necessity for the presentation of the master tapes of the copyrighted films for the validity of search warrants should at most be understood to merely serve as a guidepost in determining the existence of probable cause in copyright infringement cases where there is doubt as to the true nexus between the master tape and the pirated copies. The major concepts of both shows is the same. petitioners and private respondents presented written descriptions of the formats of their respective televisions shows. This arrangement is done to ensure 6 . An objective and careful reading of the decision in said case could lead to no other conclusion than that said directive was hardly intended to be a sweeping and inflexible requirement in all or similar copyright infringement cases. to wit: "RHODA AND ME" "IT'S A DATE" Set 1 Set 1 a. v. Inc. Mere allegations as to the existence of the copyrighted films cannot serve as basis for the issuance of a search warrant. on the basis of which the investigating prosecutor ruled: As may [be] gleaned from the evidence on record. . Court of Appeals 7 in which it was held: In fine. and the two couples are treated to a night or two of dining and/or dancing at the expense of the show. That there is an infringement on the copyright of the show "RHODA AND ME" both in content and in the execution of the video presentation are established because respondent's "IT'S A DATE" is practically an exact copy of complainant's "RHODA AND ME" because of substantial similarities as follows. . . Any difference appear mere variations of the major concepts.

same match to the searchee. the format of a show is not copyrightable. they did not have to produce the master tape. the acting form of which is fixed in writing or otherwise. Selection is use of compute (sic) methods. 10 otherwise known as the DECREE ON INTELLECTUAL PROPERTY. from the moment of creation. to wit: LLphil Section 2. Section 2 of P. and gazetteers. b.D. d. (B) Periodicals. 9 Petitioners assert that the format of Rhoda and Me is a product of ingenuity and skill and is thus entitled to copyright protection. Searcher asks a question b.that the searcher does not see the searchees. (D) Letters. addresses. choreographic works and entertainments in dumb shows. 49. with or without words. Searcher speculates on the c. Set 2 Set 2 Same as above with the genders same of the searcher and searchees interchanged. Selection is made by the d. (E) Dramatic or dramatico-musical compositions. The rights granted by this Decree shall. No. Such being the case. sermons. Searchees. c. dissertations prepared for oral delivery. 7 . based on the or by the way questions are answer of the answered. subsist with respect to any of the following classes of works: (A) Books. It is their position that the presentation of a point-by-point comparison of the formats of the two shows clearly demonstrates the nexus between the shows and hence establishes the existence of probable cause for copyright infringement. (F) Musical compositions. including pamphlets and newspapers. same to be answered by each of the searchees. enumerates the classes of work entitled to copyright protection. (C) Lectures. directories. To begin with. or similar methods. The purpose is to determine who among the searchees is the most compatible with the searcher. including composite and cyclopedic works. manuscripts.

or embodied in such work. and on terms and conditions specified in the statute. — Notwithstanding the provisions of Sections 172 and 173. 14 P. process. (O) Prints. 12 Since . . under this law. . and charts. No. (Q) Collections of literary. scientific and artistic works. procedure. which shall be protected as provided in Section 8 of this Decree. lantern slides. It is a new or independent right granted by the statute. the same to be protected as such in accordance with Section 8 of this Decree. in enumerating what are subject to copyright. For this reason. explained. lithography. 8293). No. and box wraps. and not simply a pre-existing right regulated by the statute. refers to finished works and not to concepts. or discovery.D. (L) Photographic works and works produced by a process analogous to photography. to any idea. engraving. abridgements. No. system. or artistic works or of works referred to in Section 9 of this Decree which by reason of the selection and arrangement of their contents constitute intellectual creations. method of operation. (I) Original ornamental designs or models for articles of manufacture. a copyright may be obtained only for a work falling within the statutory enumeration or description. translations.(G) Works of drawing. pictorial illustrations advertising copies. no protection shall extend. 49. it is authoritatively settled in the United States that there is no copyright except that which is both created and secured by act of Congress . painting. explained. and other works of applied art. illustrated. copyright in published works is purely a statutory creation. principle. (N) Computer programs. whether or not patentable. §2. 49. (P) Dramatizations. musical or artistic works or of works of the Philippine government as herein defined. (J) Maps.A. and may be obtained and enjoyed only with respect to the subjects and by the persons. (R) Other literary. principle. (M) Cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings. in the strict sense of the term. illustrated or embodied in a work. adaptations. is purely a statutory right. models or designs for works of art.D. 13 Regardless of the historical viewpoint. Unprotected Subject Matter. scholarly. news of the day and other miscellaneous facts having the character of mere items of press 8 . even if they are expressed. (K) Drawings or plastic works of a scientific or technical character. sketches. discovery or mere data as such. labels. architecture. the protection afforded by the law cannot be extended to cover them. Being a statutory grant. 11 The format or mechanics of a television show is not included in the list of protected works in §2 of P. . 175. This provision is substantially the same as §172 of the INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES (R. procedure. concept. tags. The copyright does not extend to an idea. regardless of the form in which it is described. arrangements and other alterations of literary. concept. the new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides: SEC. method or operation. scholarly. . system. Copyright. sculpture. plans.15 Thus. the rights are only such as the statute confers. (H) Reproductions of a work of art. and other works of art.

Authors. The undisputed facts of this case are as follows: Plaintiff-appellant is a non-profit association of authors." which had dismissed plaintiffs' complaint without special pronouncement as to costs. composers and publishers duly organized under the Corporation Law of the Philippines and registered with the Securities and Exchange Commission. the petition is hereby DISMISSED.. Nieves for defendant-appellee. v. BENJAMIN TAN. Inc. Drilon.] FILIPINO SOCIETY OF COMPOSERS.information. defendant-appellee.R. p. AUTHORS AND PUBLISHERS. Jr. As aptly observed by respondent Secretary of Justice: A television show includes more than mere words can describe because it involves a whole spectrum of visuals and effects. L-36402.. the presentation of the master videotape in evidence was indispensable to the determination of the existence of probable cause. No. certified the same to the Supreme Court for final determination (Resolution. Inc.R. cdphil The Court of Appeals. Rollo. as falling within the class of works mentioned in P. Plaintiff-Appellant v. INC. March 16. 46373-R ** entitled Filipino Society of Composers. Branch VII in Civil Case No. Benjamin Tan. vs.D. to wit: Cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings. 1973 in L-36402. finding that the case involves pure questions of law. 1987. 71222 *** "Filipino Society of Composers. video and audio. 46373-R. No. What then is the subject matter of petitioners' copyright? This Court is of the opinion that petitioner BJPI's copyright covers audio-visual recordings of each episode ofRhoda and Me. Publishers. plaintiffappellant. Rollo. p. 38). J p: An appeal was made to the Court of Appeals docketed as CA-G. No.R. 36. 108946. by the very nature of the subject of petitioner BJPI's copyright. [January 28. ||| (Joaquin. Plaintiff v. 49. as well as any official translation thereof.R. No. Ramon A. Defendant. 16 WHEREFORE. Said 9 . the investigating prosecutor should have the opportunity to compare the videotapes of the two shows. 1999].. DECISION PARAS. such that no similarity or dissimilarity may be found by merely describing the general copyright/format of both dating game shows. Accordingly. Resolution of the Supreme Court of February 16. administrative or legal nature. §2(M). Lichauco. from the decision of the Court of First Instance of Manila. Mere description by words of the general format of the two dating game shows is insufficient. SO ORDERED. Picazo & Agcaoili Law Office for plaintiff-appellant. Benjamin Tan. Authors and Publishers. or any official text of a legislative. CA-G. 361 PHIL 900-916) [G. Defendant-Appellee. The copyright does not extend to the general concept or format of its dating game show. G.

46373-R. Cdpr The principal issues in this case are whether or not the playing and signing of musical compositions which have been copyrighted under the provisions of the Copyright Law (Act 3134) inside the establishment of 10 ." On the other hand. p. 32-36) under the provisions of Section 3 of the Copyright Law (Act 3134 of the Philippine Legislature).association is the owner of certain musical compositions among which are the songs entitled: "Dahil Sa Iyo. (Resolution. 1973. In its brief in the Court of Appeals. appellee maintains that the mere singing and playing of songs and popular tunes even if they are copyrighted do not constitute an infringement (Record on Appeal. Plaintiff appealed to the Court of Appeals which as already stated certified the case to the Supreme Court for adjudication on the legal question involved. p. Accordingly. 36. finding for the defendant. II THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL COMPOSITIONS OF THE APPELLANT WERE PLAYED AND SUNG IN THE SODA FOUNTAIN AND RESTAURANT OF THE APPELLEE BY INDEPENDENT CONTRACTORS AND ONLY UPON THE REQUEST OF CUSTOMERS." "Sapagkat Kami Ay Tao Lamang" and "The Nearness Of You. Rollo. on November 7. hired to play and sing musical compositions to entertain and amuse customers therein. appellant raised the following Assignment of Errors: I THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL COMPOSITIONS OF THE APPELLANT WERE IN THE NATURE OF PUBLIC PROPERTY WHEN THEY WERE COPYRIGHTED OR REGISTERED. Resolution. 1967. Hence. pp. IV THE LOWER COURT ERRED IN NOT HOLDING THAT THE APPELLEE IS LIABLE TO THE APPELLANT FOR FOUR (4) SEPARATE INFRINGEMENTS. Rollo. The lower court. The petition is devoid of merit. p. Court of Appeals.R. pp. 38). 25). NO. Resolution of the Supreme Court of February 18. were playing and singing the above-mentioned compositions without any license or permission from the appellant to play or sing the same." "Sapagkat Ikaw Ay Akin. p. While not denying the playing of said copyrighted compositions in his establishment. A and B). LexLib Defendant-appellee. Rollo. in his answer. CA-G. appellant demanded from the appellee payment of the necessary license fee for the playing and singing of aforesaid compositions but the demand was ignored. appellant filed a complaint with the lower court for infringement of copyright against defendant-appellee for allowing the playing in defendant-appellee's restaurant of said songs copyrighted in the name of the former. dismissed the complaint (Record on Appeal. countered that the complaint states no cause of action. 11. III THE LOWER COURT ERRED IN HOLDING THAT THE PLAYING AND SINGING OF COPYRIGHTED MUSICAL COMPOSITIONS IN THE SODA FOUNTAIN AND RESTAURANT OF THE APPELLEE ARE NOT PUBLIC PERFORMANCES FOR PROFIT OF THE SAID COMPOSITIONS WITHIN THE MEANING AND CONTEMPLATION OF THE COPYRIGHT LAW. (Brief for Appellant. defendant-appellee is the operator of a restaurant known as "Alex Soda Foundation and Restaurant" where a combo with professional singers.

Series 367). They are part of a total for which the public pays. p. and assuming that there were indeed public performances for profit. infringes the exclusive right of the owner of the copyright. In a similar case. for the entertainment of patrons. but neither is the food. so that waves are thrown out. Hillard Hotel Co. 242 U. John Church Co.." (Buck. or reproduce the copyrighted work in any manner or by any method whatever for profit or otherwise. et al.. not only upon the air. Performances not different in kind from those of the defendants could be given that might compete with and even destroy the success of the monopoly that the law intends the plaintiffs to have.S. In delivering the opinion of the Court in said two cases. 1925). Duncan. but upon the other. 317). which probably could be got cheaper elsewhere. it has been explained that while it is possible in such establishments for the patrons to purchase their food and drinks and at the same time dance to the music of the orchestra. . Supp. whether or not appellee can be held liable therefor. Appellant anchors its claim on Section 3(c) of the Copyright Law which provides: "SEC. The proprietor of a copyright or his heirs or assigns shall have the exclusive right: xxx xxx xxx (c) To exhibit. and it is public. thereby producing in the air sound waves which are heard as music . The object is a repast in surroundings that to people having limited power of conversation or disliking the rival noise.. the music is furnished and used by the orchestra for the purpose of inducing the public to patronize the establishment and pay for the entertainment in the purchase of food and drinks. and the music is performed for profit (Ibid. and the fact that the price of the whole is attributed to a particular item which those present are expected to order is not important. The defendant conducts his place of business for profit. give a luxurious pleasure not to be had from eating a silent 11 . 32F. 3. it has been held that "The playing of music in dine and dance establishment which was paid for by the public in purchases of food and drink constituted 'performance for profit' within a Copyright Law. It is enough to say that there is no need to construe the statute so narrowly.. of a copyrighted musical composition. et al. Same v. The defendants' performances are not eleemosynary.the defendant-appellee constitute a public performance for profit within the meaning and contemplation of the Copyright Law of the Philippines. Shanley Co. Russon. they are very imperfectly protected. to sell any manuscripts or any record whatsoever thereof. if not reproduced in copies for sale." (Herbert v. No. et al. In relation thereto. We concede that indeed there were "public performances for profit." The word 'perform' as used in the Act has been applied to "One who plays a musical composition on a piano. et al. by persons employed by the proprietor. produce. xxx xxx xxx" It maintains that playing or singing a musical composition is universally accepted as performing the musical composition and that playing and singing of copyrighted music in the soda fountain and restaurant of the appellee for the entertainment of the customers although the latter do not pay for the music but only for the food and drink constitute performance for profit under the Copyright Law (Brief for the Appellant. then also he is performing the musical composition. Justice Holmes elaborated thus: prcd "If the rights under the copyright are infringed only by a performance where money is taken at the door. without charge for admission to hear it. v." (Buck. 4489 25 F. Jewell-La Salle Realty Co. v. pp.. represent. 2d.. It is true that the music is not the sole object. . and if the instrument he plays on is a piano plus a broadcasting apparatus. the Court ruled that "The Performance in a restaurant or hotel dining room. v. 590-591). 319). perform. Thus.

v. 594). (the year of the hearing) or from 1943 (TSN. 21). L-36402. 12 SCRA 324-325 [1964]. 1968. 27) and the songs "Sapagkat Ikaw Ay Akin" and "Sapagkat Kami Ay Tao Lamang" both registered on July 10.meal. 1968. 1947) entitled 'Rules of Practice in the Philippines Patent Office relating to the Registration of Copyright Claims' promulgated pursuant to Republic Act 165. p. A careful study of the records reveals that the song "Dahil Sa Iyo" which was registered on April 20. No. and that is enough. It will be noted that for the playing and singing the musical compositions involved. McCullough Printing Company. as amended). If it pays. 71222 is hereby AFFIRMED. Consequently. It is therefore obvious that the expenses entailed thereby are added to the overhead of the restaurant which are either eventually charged in the price of the food and drinks or to the overall total of additional income produced by the bigger volume of business which the entertainment was programmed to attract. 3-5. the purpose of employing it is profit. appellee cannot be said to have infringed upon the Copyright Law. appear to have been known and sang by the witnesses as early as 1965 or three years before the hearing in 1968. the appealed decision of the Court of First Instance of Manila in Civil Case No. long before registration (TSN. The testimonies of the witnesses at the hearing of this case on this subject were unrebutted by the appellant. No. pp. Tan.. if the general public has made use of the object sought to be copyrighted for thirty (30) days prior to the copyright application the law deems the object to have been donated to the public domain and the same can no longer be copyrighted. p. Inc. 3 (as amended." (Ibid. [March 16. SO ORDERED ||| (Filipino Society of Composers. or within sixty (60) days if made elsewhere. llcd The Supreme Court has ruled that "Paragraph 33 of Patent Office Administrative Order No. p. dated September 18. 49. 1955 (Brief for Appellant. it is beyond question that the playing and singing of the combo in defendantappellee's restaurant constituted performance for profit contemplated by the Copyright Law.D. 1966. 232 PHIL 426-434) 12 . Nevertheless. the combo was paid as independent contractors by the appellant (Record on Appeal. Whether it pays or not. pp. 25) while the song "The Nearness Of You" registered on January 14. it pays out of the public's pocket. (Ibid. As found by the trial court. 24). PREMISES CONSIDERED. 14-15) is correct. May 28. Authors and Publishers. 29 and 30). May 28. 28. 10) had become popular twenty five (25) years prior to 1968. p. and are therefore beyond the protection of the Copyright Law. 10) became popular in radios. the music provided is for the purpose of entertaining and amusing the customers in order to make the establishment more attractive and desirable (Record on Appeal. p. Indeed. In the case at bar. If music did not pay. failure of which renders such creation public property. juke boxes. if made in Manila." (Santos v. it is clear that the musical compositions in question had long become public property. it is admitted that the patrons of the restaurant in question pay only for the food and drinks and apparently not for listening to the music. etc. G. Appellee's allegation that the composers of the contested musical compositionswaived their right in favor of the general public when they allowed their intellectual creations to become property of the public domain before applying for the corresponding copyrights for the same (Brief for Defendant-Appellee. p. 1987]. it would be given up.R. provides among other things that an intellectual creation should be copyrighted thirty (30) days after its publication. pp. (Act 3134 as amended by P. Under the circumstances. 1956 (Brief for Appellant..