On January 19 2009, the Supreme Court rendered its decision in case no GR 175769-70 denying the petition of ABS-CBN Corporation, which accused Philippine Multi-Media System Inc (PMSI) of violating its broadcasting rights and copyright. This case arose from a 2002 administrative complaint filed with the Bureau of Legal Affairs of the Intellectual Property Office (IPOPhil) by ABS-CBN, the Philippines' top broadcasting company, against PMSI, a provider of a direct-to-home television services using satellite, alleging that PMSI's unauthorised rebroadcasting of ABS-CBN's Channels 2 and 23 infringed on its broadcasting rights and copyright. ABS-CBN anchored its complaint on Sections 211 and 177 of the IP Code, which provides that broadcasting organisations shall enjoy the exclusive right to carry out, authorise or prevent the rebroadcasting of their broadcasts, and copyright or economic rights shall consist of the exclusive right to carry out, authorise or prevent the public performance of the work, and other communication to the public of the work.
PMSI countered that its rebroadcasting was in compliance with the mandatory carriage of television broadcast signals under Memorandum Circular no 4-08-88, of the National Telecommunications Commission (NTC), under its legislative franchise. The circular was issued to give consumers and the public a wider access to more sources of news, information, entertainment and other programmes.
On December 22 2003, the Bureau of Legal Affairs found that PMSI infringed the broadcasting rights and copyright of ABS-CBN and ordered it to permanently stop rebroadcasting Channels 2 and 23. On appeal by PMSI, the Director General of IPOPhil held that there was no infringement and reversed and set aside the decision of the BLA. ABS-CBN appealed the Director-General's decision to the Court of Appeals which affirmed the decision, prompting ABS-CBN to go to the Supreme Court. The Supreme Court issued its decision on January 19 2009, affirming the findings by the Director General of IPOPhil and the Court of Appeals of non-infringement and non-violation of the broadcaster's rights of ABS-CBN by PMSI.
The Supreme Court held that the medium through which PMSI carried ABS-CBN's signal, (satellite) does not diminish the fact that PMSI operates and functions as a cable television company, hence it cannot be considered within the purview of broadcasting. According to the Supreme Court, the Director-General of IPOPhil and the Court of Appeals correctly found that PMSI's services are similar to a cable television system because the services it renders fall under cable retransmission, as described in the working paper of the Rome Convention. While the Rome Convention gives broadcasting organisations the right to authorise or prohibit the rebroadcasting of its programmes, this protection does not extend to cable retransmission. The retransmission of ABS-CBN's signals by PMSI – which functions essentially as a cable television – does not therefore constitute rebroadcasting in violation of the former's intellectual property rights under the IP Code.
 |
| Editha R Hechanova |
Hechanova Bugay & Vilchez
GF Chemphil Building Antonio Arnaiz Ave
Makati City 1223
Philippines
Tel: +63 2 888 4293
Fax: +63 2 888 4290
editharh@info.com.ph