Recent Sc Copyright Cases

SECOND DIVISION [G.R. No. 119280. August 10, 2006.] UNILEVER PHILIPPINES (PRC), INC., petitioner, vs. THE HONORABLE COURT OF APPEALS and PROCTER AND GAMBLE PHILIPPINES, INC., respondents. DECISION CORONA, J p: In this petition for review under Rule 45 of the Rules of Court, petitioner assails the February 24, 1995 decision 1 of the Court of Appeals (CA) in CA-G.R. SP No. 35242 entitled "Unilever Philippines (PRC), Inc. v. Honorable Fernando V. Gorospe, Jr. and Procter and Gamble Philippines, Inc. (P&GP)" which affirmed the issuance by the court a quo of a writ of preliminary injunction against it. The writ enjoined petitioner from using and airing, until further orders of the court, certain television commercials for its laundry products claimed to be identical or similar to its "double tug" or "tac-tac" key visual. 2 Petitioner alleges that the writ of preliminary injunction was issued by the trial court (and affirmed by the CA) without any evidence of private respondent's clear and unmistakable right to the writ. Petitioner further contends that the preliminary injunction issued against it already disposed of the main case without trial, thus denying petitioner of any opportunity to present evidence on its behalf. AcHEaS The antecedents show that on August 24, 1994, private respondent Procter and Gamble Phils., Inc. filed a complaint for injunction with damages and a prayer for temporary restraining order and/or writ of preliminary injunction against petitioner Unilever, alleging that: 1.5. As early as 1982, a P&G subsidiary in Italy used a key visual in the advertisement of its laundry detergent and bleaching products. This key visual known as the "double-tug" or "tactac" demonstration shows the fabric being held by both hands and stretched sideways. 1.6. The "tac-tac" was conceptualized for P&G by the advertising agency Milano and Gray of Italy in 1982. The "tac-tac" was used in the same year in an advertisement entitled "All aperto" to demonstrate the effect on fabrics of one of P&GP's products, a liquid bleach called "Ace." xxx

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1.7. Since then, P&G has used the "tac-tac" key visual in the advertisement of its products. In fact, in 1986, in Italy, the "tac-tac" key visual was used in the television commercial for "Ace" entitled "Kite." 1.8. P&G has used the same distinctive "tac-tac" key visual to local consumers in the Philippines. HCATEa xxx

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1.10. Substantially and materially imitating the aforesaid "tac-tac" key visual of P&GP and in blatant disregard of P&GP's intellectual property rights, Unilever on 24 July 1993 started airing a 60 second television commercial "TVC" of its "Breeze Powerwhite" laundry product called "Porky." The said TVC included a stretching visual presentation and sound effects almost [identical] or substantially similar to P&GP's "tac-tac" key visual. xxx

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1.14. On July 15, 1994, P&GP aired in the Philippines, the same "Kite" television advertisement it used in Italy in 1986, merely dubbing the Italian language with Filipino for the same produce "Ace" bleaching liquid which P&GP now markets in the Philippines. 1.15. On August 1, 1994, Unilever filed a Complaint with the Advertising Board of the Philippines to prevent P&GP from airing the "Kite" television advertisement. 3 On August 26, 1994, Judge Gorospe issued an order granting a temporary restraining order and setting it for hearing on September 2, 1994 for Unilever to show cause why the writ of preliminary injunction should not issue. During the hearing on September 2, 1994, P&GP received Unilever's answer with opposition to preliminary injunction. P&GP filed its reply to Unilever's opposition to a preliminary injunction on September 6, 1994. HDTcEI During the hearing on September 9, 1994, Judge Gorospe ordered petitioner to submit a surrejoinder. P&GP received Unilever's rejoinder to reply on September 13, 1994. The following day, on September 14, 1994, P&GP filed its sur-reply to Unilever's rejoinder. On September 19, 1994, P&GP received a copy of the order dated September 16, 1994 ordering the issuance of a writ of preliminary injunction and fixing a bond of P100,000. On the same date, P&GP filed the required bond issued by Prudential Guarantee and Assurance, Inc. On September 21, 1994, petitioner appealed to the CA assigning the following errors allegedly committed by the court a quo, to wit: PUBLIC RESPONDENT HAD ACTED WITHOUT OR IN EXCESS OF JURISDICTION AND WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN ISSUING THE WRIT OF PRELIMINARY INJUNCTION IN VIOLATION OF THE RULES ON EVIDENCE AND PROCEDURE, PARTICULARLY OF SEC. 3 (a), RULE 58 OF THE REVISED RULES OF COURT AND OF THE PREVAILING JURISPRUDENCE. PUBLIC RESPONDENT IN ISSUING THE VOID ORDER DATED SEPTEMBER 16, 1994, HAD, IN EFFECT, ALREADY PREJUDGED THE MERITS OF THE MAIN CASE. PUBLIC RESPONDENT HAD ISSUED THE VOID ORDER ACCORDING RELIEF TO A NONPARTY IN CIVIL CASE NO. 94-2434 WITHOUT JURISDICTION. THEDcS PUBLIC RESPONDENT IN ISSUING THE VOID ORDER HAD DEPRIVED PETITIONER OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS; PUBLIC RESPONDENT HAD FORECLOSED PETITIONER'S RIGHT AND THE OPPORTUNITY TO CROSS-EXAMINE PROCTER'S WITNESSES ABAD AND HERBOSA. 4 2

On February 24, 1995, the CA rendered its decision finding that Judge Gorospe did not act with grave abuse of discretion in issuing the disputed order. The petition for certiorari was thus dismissed for lack of merit. After a careful perusal of the records, we agree with the CA and affirm its decision in toto: ECcaDT Petitioner does not deny that the questioned TV advertisements are substantially similar to P&GP's "double tug" or "tac-tac" key visual. However, it submits that P&GP is not entitled to the relief demanded, which is to enjoin petitioner from airing said TV advertisements, for the reason that petitioner has Certificates of Copyright Registration for which advertisements while P&GP has none with respect to its "double-tug" or "tac-tac" key visual. In other words, it is petitioner's contention that P&GP is not entitled to any protection because it has not registered with the National Library the very TV commercials which it claims have been infringed by petitioner. We disagree. Section 2 of PD 49 stipulates that the copyright for a work or intellectual creation subsists from the moment of its creation. Accordingly, the creator acquires copyright for his work right upon its creation . . . Contrary to petitioner's contention, the intellectual creator's exercise and enjoyment of copyright for his work and the protection given by law to him is not contingent or dependent on any formality or registration. Therefore, taking the material allegations of paragraphs 1.3 to 1.5 of P&GP's verified Complaint in the context of PD 49, it cannot be seriously doubted that at least, for purposes of determining whether preliminary injunction should issue during the pendency of the case, P&GP is entitled to the injunctive relief prayed for in its Complaint. aDHScI The second ground is likewise not well-taken. As adverted to earlier, the provisional remedy of preliminary injunction will not issue unless it is shown in the verified complaint that plaintiff is probably entitled to the relief demanded, which consists in whole or in part in restraining the commission or continuance of the acts complained of. In view of such requirement, the court has to make a tentative determination if the right sought to be protected exists and whether the act against which the writ is to be directed is violative of such right. Certainly, the court's determination as to the propriety of issuing the writ cannot be taken as a prejudgment of the merits of the case because it is tentative in nature and the writ may be dissolved during or after the trial if the court finds that plaintiff was not entitled to it. . . xxx

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Obviously, the determination made by the court a quo was only for purposes of preliminary injunction, without passing upon the merits of the case, which cannot be done until after a fullblown hearing is conducted. The third ground is patently unmeritorious. As alleged in the Complaint P&GP is a subsidiary of Procter and Gamble Company (P&G) for which the "double tug" or "tac-tac" key visual was conceptualized or created. In that capacity, P&GP used the said TV advertisement in the Philippines to promote its products. As such subsidiary, P&GP is definitely within the protective mantle of the statute (Sec. 6, PD 49). 3

Finally, We find the procedure adopted by the court a quo to be in order. . . The record clearly shows that respondent Judge followed the (procedure provided for in Section 5, Rule 58, as amended by BP 224, and Paragraph A(8) of the Interim Rules). In fact, the court a quo set the incident for hearing on September 2, 1994, at which date petitioner was ordered to show cause why the writ should not be issued. Petitioner filed an Opposition to the application for preliminary injunction. The same incident was again set for hearing on September 9, 1994, during which the parties made some manifestations in support of their respective positions. Subsequent to such hearing petitioner filed a Reply to P&GP's Rejoinder to its Opposition. Under the foregoing circumstances, it is absurd to even suggest that petitioner was not given its day in court in the matter of the issuance of the preliminary injunctive relief. SHIETa xxx

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There was of course extreme urgency for the court a quo to act on plaintiff's application for preliminary injunction. The airing of TV commercials is necessarily of limited duration only. Without such temporary relief, any permanent injunction against the infringing TV advertisements of which P&GP may possibly succeed in getting after the main case is finally adjudicated could be illusory if by then such advertisements are no longer used or aired by petitioner. It is therefore not difficult to perceive the possible irreparable damage which P&GP may suffer if respondent Judge did not act promptly on its application for preliminary injunction. 5 Preliminary injunction is a provisional remedy intended to provide protection to parties for the preservation of their rights or interests during the pendency of the principal action. 6 Thus, Section 1, Rule 58 of the Rules of Court provides: TaHDAS Section 1. Preliminary injunction defined; classes. — A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. Injunction is resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard compensation. 7 As correctly ruled by the CA, there was an extreme urgency to grant the preliminary injunction prayed for by P&GP considering that TV commercials are aired for a limited period of time only. In fact, this Court takes note of the fact that the TV commercial in issue — the Kite TV advertisement — is no longer aired today, more than 10 years after the injunction was granted on September 16, 1994. The sole objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case can be heard fully. 8 A writ of preliminary injunction is generally based solely on initial and incomplete evidence. 9 Thus, it was impossible for the court a quo to fully dispose of the case, as claimed by petitioner, without all the evidence needed for the full resolution of the same. To date, the main case still has to be resolved by the trial court. DISaEA

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The issuance of a preliminary injunction rests entirely on the discretion of the court and is generally not interfered with except in cases of manifest abuse. 10 There was no such abuse in the case at bar, especially because petitioner was given all the opportunity to oppose the application for injunction. The fact was, it failed to convince the court why the injunction should not be issued. Thus, in Santos v. Court of Appeals, 11 we held that no grave abuse of discretion can be attributed to a judge or body issuing a writ of preliminary injunction where a party has not been deprived of its day in court as it was heard and it exhaustively presented all its arguments and defenses. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED. Puno, Sandoval-Gutierrez and Azcuna, JJ., concur. Garcia, J., took no part.

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THIRD DIVISION [G.R. No. 166337. March 7, 2005.] BAYANIHAN MUSIC PHILIPPINES, INC., petitioner, vs. BMG RECORDS (PILIPINAS) AND JOSE MARI CHAN, ET AL., respondent. Gentlemen: Quoted hereunder, for your information, is a resolution of the Third Division of this Court dated March 7, 2005. ASIDTa Subject of this petition for review on certiorari is the Decision dated December 14, 2004 1 of the Court of Appeals in CA-G.R. SP No. 69626, upholding the Order dated August 24, 2001 of the Regional Trial Court at Quezon City, Branch 90, which found no merit in petitioner's application for the issuance of a writ of preliminary injunction, along with the Order dated January 10, 2002, which denied petitioner's motion for reconsideration. On July 16, 1973, private respondent Jose Mari Chan (Chan) entered into a contract with petitioner Bayanihan Music Philippines, Inc. (Bayanihan), whereunder the former assigned to the latter all his rights, interests and participation over his musical composition "Can We Just Stop and Talk A While". On March 11, 1976, the parties entered into a similar contract over Chan's other musical composition entitled "Afraid For Love To Fade". On the strength of the abovementioned contracts, Bayanihan applied for and was granted by the National Library a Certificate of Copyright Registration for each of the two musical compositions, thus: November 19, 1973, for the song "Can We Just Stop and Talk A While" and on May 21, 1980, for the song "Afraid for Love To Fade." SaIHDA Apparently, without the knowledge and consent of petitioner Bayanihan, Chan authorized his co-respondent BMG Records (Pilipinas) [BMG] to record and distribute the aforementioned musical compositions in a then recently released album of singer Lea Salonga. In separate letters both dated December 7, 1999, petitioner Bayanihan informed respondents Chan and BMG of its existing copyrights over the subject musical compositions and the alleged violation of such right by the two. Demands were made on both to settle the matter with Bayanihan. However no settlement was reached by the parties. Hence, on August 8, 2000, Bayanihan filed with the Regional Trial Court at Quezon City a complaint against Chan and BMG for violation of Section 216 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, with a prayer for the issuance of Temporary Restraining Order (TRO) and/or writ of preliminary injunction, enjoining respondent BMG from further recording and distributing the subject musical compositions in whatever form of musical products, and Chan from further granting any authority to record and distribute the same musical compositions. In its answer, BMG contended, among others, that: (1) the acts of recording and publication sought to be enjoined had already been consummated, thereby rendering moot Bayanihan's 6

prayer for TRO and/or preliminary injunction; and (2) there is no clear showing that petitioner Bayanihan would be greatly damaged by the refusal of the prayed for TRO and/or preliminary injunction. BMG also pleaded a cross-claim against its co-respondent Chan for violation of his warranty that his musical compositions are free from claims of third persons, and a counterclaim for damages against petitioner Bayanihan. Chan, for his part, filed his own answer to the complaint, thereunder alleging that: (1) it was never his intention to divest himself of all his rights and interest over the musical compositions in question; (2) the contracts he entered into with Bayanihan are mere music publication agreements giving Bayanihan, as assignee, the power to administer his copyright over his two songs and to act as the exclusive publisher thereof; (3) he was not cognizant of the application made by and the subsequent grant of copyrights to Bayanihan; and (4) Bayanihan was remissed in its obligations under the contracts because it failed to effectively advertise his musical compositions for almost twenty (20) years, hence, he caused the rescission of said contracts in 1997. Chan also included in his answer a counterclaim for damages against Bayanihan. DHEaTS After hearing the parties, the lower court came out with an order denying Bayanihan's prayer for TRO, saying, thus: After carefully considering the arguments and evaluating the evidence presented by counsels, this Court finds that the plaintiff has not been able to show its entitlement to the relief of TRO as prayed for in its verified complaint (see Section 4, Rule 58 of the 1997 Rules of Civil Procedure, as amended), hence, this Court is of the considered and humble view that the ends of justice shall be served better if the aforecited application is denied. IN VIEW OF THE FOREGOING, the aforecited application or prayer for the issuance of a TRO is denied. SO ORDERED. Thereafter, the same court, in its subsequent Order dated August 24, 2001, 2 likewise denied Bayanihan's prayer for a writ of preliminary injunction, to wit: After carefully going over the pleadings and the pertinent portions of the records insofar as they are pertinent to the issue under consideration, this Court finds that the plaintiff has not been able to show its entitlement to the relief of preliminary injunction as prayed for in its verified complaint (see Section 4, Rule 58 of the 1997 Rules of Civil Procedure, as amended), hence, this Court is of the considered and humble view that the ends of justice shall be served better if the aforecited application is denied. (see also Order dated July 16, 2001). IN VIEW OF THE FOREGOING, the application or prayer for the issuance of a writ of preliminary injunction is denied. SO ORDERED.

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Its motion for a reconsideration of the same order having been likewise denied by the trial court in its next Order of January 10, 2002, 3 petitioner Bayanihan then went to the Court of Appeals on a petition for certiorari, thereat docketed as CA-G.R. SP No. 69626, imputing grave abuse of discretion on the part of the trial court in issuing the Orders of August 24, 2001 and January 10, 2001, denying its prayers for a writ of preliminary injunction and motion for reconsideration, respectively. In the herein assailed Decision dated December 14, 2004, the Court of Appeals upheld the challenged orders of the trial court and accordingly dismissed Bayanihan petition, thus: WHEREFORE, finding neither flaw of jurisdiction nor taint of grave abuse of discretion in the issuance of the assailed Orders of the respondent court dated August 24, 2001 and January 10, 2002, the instant petition is DISMISSED. No costs. SO ORDERED. 4 Hence, Bayanihan's present recourse. It is petitioner's submission that the appellate court committed reversible error when it dismissed its petition for certiorari and upheld the trial court's denial of its application for a writ of preliminary injunction. Petitioner insists that as assignee of the copyrights over the musical compositions in question, it has a clear legal right to a writ of preliminary injunction; that respondents BMG and Chan violated its copyrights over the same musical compositions; that despite knowledge by respondent BMG of petitioner's copyrights over the said musical compositions, BMG continues to record and distribute the same, to petitioner's great and irreparable injury. DaTEIc We DENY. We have constantly reminded courts that there is no power, the exercise of which is more delicate and requires greater caution, deliberation and sound discretion, or which is more dangerous in a doubtful case, than the issuance of an injunction. A court should, as much as possible, avoid issuing the writ which would effectively dispose of the main case without trial. Here, nothing is more evident than the trial court's abiding awareness of the extremely difficult balancing act it had to perform in dealing with petitioner's prayer for injunctive reliefs. Conscious, as evidently it is, of the fact that there is manifest abuse of discretion in the issuance of an injunctive writ if the following requisites provided for by law are not present: (1) there must be a right in esse or the existence of a right to be protected; and (2) the act against which the injunction is to be directed is a violation of such right, 5 the trial court threaded the correct path in denying petitioner's prayer therefor. For, such a writ should only be granted if a party is clearly entitled thereto. 6 Of course, while a clear showing of the right to an injunctive writ is necessary albeit its existence need not be conclusively established, 7 as the evidence required therefor need not be conclusive or complete, still, for an applicant, like petitioner Bayanihan, to be entitled to the writ, he is required to show that he has the ostensible right to the final, relief prayed for in its 8

complaint. 8 Here, the trial court did not find ample justifications for the issuance of the writ prayed for by petitioner. Unquestionably, respondent Chan, being undeniably the composer and author of the lyrics of the two (2) songs, is protected by the mere fact alone that he is the creator thereof, conformably with Republic Act No. 8293, otherwise known as the Intellectual Property Code, Section 172.2 of which reads: 172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. IEAaST An examination of petitioner's verified complaint in light of the two (2) contracts sued upon and the evidence it adduced during the hearing on the application for preliminary injunction, yields not the existence of the requisite right protectable by the provisional relief but rather a lingering doubt on whether there is or there is no such right. The two contracts between petitioner and Chan relative to the musical compositions subject of the suit contain the following identical stipulations: 7. It is also hereby agreed to by the parties herein that in the event the PUBLISHER [petitioner herein] fails to use in any manner whatsoever within two (2) years any of the compositions covered by this contract, then such composition may be released in favor of the WRITER and excluded from this contract and the PUBLISHER shall execute the necessary release in writing in favor of the WRITER upon request of the WRITER; xxx

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9. This contract may be renewed for a period of two-and-one-half (2 1/2) years at the option of the PUBLISHER. Renewal may be made by the PUBLISHER by advising the WRITER of such renewal in writing at least five (5) days before the expiration of this contract. 9 It would thus appear that the two (2) contracts expired on October 1, 1975 and March 11, 1978, respectively, there being neither an allegation, much less proof, that petitioner Bayanihan ever made use of the compositions within the two-year period agreed upon by the parties. Anent the copyrights obtained by petitioner on the basis of the selfsame two (2) contracts, suffice it to say that such purported copyrights are not presumed to subsist in accordance with Section 218[a] and [b], of the Intellectual Property Code, 10 because respondent Chan had put in issue the existence thereof. It is noted that Chan revoked and terminated said contracts, along with others, on July 30, 1997, or almost two years before petitioner Bayanihan wrote its sort of complaint/demand letter dated December 7, 1999 regarding the recent "use/recording of the songs 'Can We Just Stop and Talk A While' and 'Afraid for Love to Fade,"' or almost three (3) years before petitioner filed its complaint on August 8, 2000, therein praying, inter alia, for injunctive relief. By then, it would appear that petitioner had no more right that is protectable by injunction. AIDcTE

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Lastly, petitioner's insinuation that the trial court indulged in generalizations and was rather skimpy in dishing out its reasons for denying its prayer for provisional injunctive relief, the same deserves scant consideration. For sure, the manner by which the trial court crafted its challenged orders is quite understandable, lest it be subjected to a plausible suspicion of having prejudged the merits of the main case. IcEaST WHEREFORE, petition is hereby DENIED. SO ORDERED. Very truly yours, (SGD.) LUCITA ABJELINA SORIANO Clerk of Court

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THIRD DIVISION [G.R. Nos. 175769-70. January 19, 2009.] ABS-CBN BROADCASTING CORPORATION, petitioner, vs. PHILIPPINE MULTI-MEDIA SYSTEM, INC., CESAR G. REYES, FRANCIS CHUA (ANG BIAO), MANUEL F. ABELLADA, RAUL B. DE MESA, AND ALOYSIUS M. COLAYCO, respondents. DECISION YNARES-SANTIAGO, J p: This petition for review on certiorari 1 assails the July 12, 2006 Decision 2 of the Court of Appeals in CA-G.R. SP Nos. 88092 and 90762, which affirmed the December 20, 2004 Decision of the Director-General of the Intellectual Property Office (IPO) in Appeal No. 10-20040002. Also assailed is the December 11, 2006 Resolution 3 denying the motion for reconsideration. TaISEH Petitioner ABS-CBN Broadcasting Corporation (ABS-CBN) is licensed under the laws of the Republic of the Philippines to engage in television and radio broadcasting. 4 It broadcasts television programs by wireless means to Metro Manila and nearby provinces, and by satellite to provincial stations through Channel 2 on Very High Frequency (VHF) and Channel 23 on Ultra High Frequency (UHF). The programs aired over Channels 2 and 23 are either produced by ABS-CBN or purchased from or licensed by other producers. 2009jur ABS-CBN also owns regional television stations which pattern their programming in accordance with perceived demands of the region. Thus, television programs shown in Metro Manila and nearby provinces are not necessarily shown in other provinces. cDIHES

Respondent Philippine Multi-Media System, Inc. (PMSI) is the operator of Dream Broadcasting System. It delivers digital direct-to-home (DTH) television via satellite to its subscribers all over the Philippines. Herein individual respondents, Cesar G. Reyes, Francis Chua, Manuel F. Abellada, Raul B. de Mesa, and Aloysius M. Colayco, are members of PMSI's Board of Directors. PMSI was granted a legislative franchise under Republic Act No. 8630 5 on May 7, 1998 and was given a Provisional Authority by the National Telecommunications Commission (NTC) on February 1, 2000 to install, operate and maintain a nationwide DTH satellite service. When it commenced operations, it offered as part of its program line-up ABS-CBN Channels 2 and 23, NBN, Channel 4, ABC Channel 5, GMA Channel 7, RPN Channel 9, and IBC Channel 13, together with other paid premium program channels. CTSHDI However, on April 25, 2001, 6 ABS-CBN demanded for PMSI to cease and desist from rebroadcasting Channels 2 and 23. On April 27, 2001, 7 PMSI replied that the rebroadcasting 11

was in accordance with the authority granted it by NTC and its obligation under NTC Memorandum Circular No. 4-08-88, 8 Section 6.2 of which requires all cable television system operators operating in a community within Grade "A" or "B" contours to carry the television signals of the authorized television broadcast stations. 9 HDAaIc Thereafter, negotiations ensued between the parties in an effort to reach a settlement; however, the negotiations were terminated on April 4, 2002 by ABS-CBN allegedly due to PMSI's inability to ensure the prevention of illegal retransmission and further rebroadcast of its signals, as well as the adverse effect of the rebroadcasts on the business operations of its regional television stations. 10 2009jur On May 13, 2002, ABS-CBN filed with the IPO a complaint for "Violation of Laws Involving Property Rights, with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction", which was docketed as IPV No. 10-2002-0004. It alleged that PMSI's unauthorized rebroadcasting of Channels 2 and 23 infringed on its broadcasting rights and copyright. EACIcH On July 2, 2002, the Bureau of Legal Affairs (BLA) of the IPO granted ABS-CBN's application for a temporary restraining order. On July 12, 2002, PMSI suspended its retransmission of Channels 2 and 23 and likewise filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 71597. STaCIA Subsequently, PMSI filed with the BLA a Manifestation reiterating that it is subject to the mustcarry rule under Memorandum Circular No. 04-08-88. It also submitted a letter dated December 20, 2002 of then NTC Commissioner Armi Jane R. Borje to PMSI stating as follows: This refers to your letter dated December 16, 2002 requesting for regulatory guidance from this Commission in connection with the application and coverage of NTC Memorandum Circular No. 4-08-88, particularly Section 6 thereof, on mandatory carriage of television broadcast signals, to the direct-to-home (DTH) pay television services of Philippine Multi-Media System, Inc. (PMSI). IcESaA Preliminarily, both DTH pay television and cable television services are broadcast services, the only difference being the medium of delivering such services (i.e., the former by satellite and the latter by cable). Both can carry broadcast signals to the remote areas, thus enriching the lives of the residents thereof through the dissemination of social, economic, educational information and cultural programs. ITSacC 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, particularly section 6 thereof, on mandatory carriage of television broadcast signals, DTH pay television services should be deemed covered by such NTC Memorandum Circular. ACaTIc

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For your guidance. (Emphasis added) 11 On August 26, 2003, PMSI filed another Manifestation with the BLA that it received a letter dated July 24, 2003 from the NTC enjoining strict and immediate compliance with the mustcarry rule under Memorandum Circular No. 04-08-88, to wit: Dear Mr. Abellada: Last July 22, 2003, the National Telecommunications Commission (NTC) received a letter dated July 17, 2003 from President/COO Rene Q. Bello of the International Broadcasting Corporation (IBC-Channel 13) complaining that your company, Dream Broadcasting System, Inc., has cutoff, without any notice or explanation whatsoever, to air the programs of IBC-13, a free-to-air television, to the detriment of the public. IHCESD We were told that, until now, this has been going on. Please be advised that as a direct broadcast satellite operator, operating a direct-to-home (DTH) broadcasting system, with a provisional authority (PA) from the NTC, your company, along with cable television operators, are mandated to strictly comply with the existing policy of NTC on mandatory carriage of television broadcast signals as provided under Memorandum Circular No. 04-08-88, also known as the Revised Rules and Regulations Governing Cable Television System in the Philippines. This mandatory coverage provision under Section 6.2 of said Memorandum Circular, requires all cable television system operators, operating in a community within the Grade "A" or "B" contours to "must-carry" the television signals of the authorized television broadcast stations, one of which is IBC-13. Said directive equally applies to your company as the circular was issued to give consumers and the public a wider access to more sources of news, information, entertainment and other programs/contents. This Commission, as the governing agency vested by laws with the jurisdiction, supervision and control over all public services, which includes direct broadcast satellite operators, and taking into consideration the paramount interest of the public in general, hereby directs you to immediately restore the signal of IBC-13 in your network programs, pursuant to existing circulars and regulations of the Commission. CcSTHI For strict compliance. (Emphasis added) 12 Meanwhile, on October 10, 2003, the NTC issued Memorandum Circular No. 10-10-2003, entitled "Implementing Rules and Regulations Governing Community Antenna/Cable Television (CATV) and Direct Broadcast Satellite (DBS) Services to Promote Competition in the Sector". Article 6, Section 8 thereof states: ADTCaI As a general rule, the reception, distribution and/or transmission by any CATV/DBS operator of any television signals without any agreement with or authorization from program/content providers are prohibited.

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On whether Memorandum Circular No. 10-10-2003 amended Memorandum Circular No. 04-0888, the NTC explained to PMSI in a letter dated November 3, 2003 that: To address your query on whether or not the provisions of MC 10-10-2003 would have the effect of amending the provisions of MC 4-08-88 on mandatory carriage of television signals, the answer is in the negative. ATEHDc xxx

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The Commission maintains that, MC 4-08-88 remains valid, subsisting and enforceable. Please be advised, therefore, that as duly licensed direct-to-home satellite television service provider authorized by this Commission, your company continues to be bound by the guidelines provided for under MC 04-08-88, specifically your obligation under its mandatory carriage provisions, in addition to your obligations under MC 10-10-2003. (Emphasis added) ETDaIC Please be guided accordingly. 13 On December 22, 2003, the BLA rendered a decision 14 finding that PMSI infringed the broadcasting rights and copyright of ABS-CBN and ordering it to permanently cease and desist from rebroadcasting Channels 2 and 23. On February 6, 2004, PMSI filed an appeal with the Office of the Director-General of the IPO which was docketed as Appeal No. 10-2004-0002. On December 23, 2004, it also filed with the Court of Appeals a "Motion to Withdraw Petition; Alternatively, Memorandum of the Petition for Certiorari " in CA-G.R. SP No. 71597, which was granted in a resolution dated February 17, 2005. CITaSA On December 20, 2004, the Director-General of the IPO rendered a decision 15 in favor of PMSI, the dispositive portion of which states: WHEREFORE, premises considered, the instant appeal is hereby GRANTED. Accordingly, Decision No. 2003-01 dated 22 December 2003 of the Director of Bureau of Legal Affairs is hereby REVERSED and SET ASIDE. cDTHIE Let a copy of this Decision be furnished the Director of the Bureau of Legal Affairs for appropriate action, and the records be returned to her for proper disposition. The Documentation, Information and Technology Transfer Bureau is also given a copy for library and reference purposes. SO ORDERED. 16 Thus, ABS-CBN filed a petition for review with prayer for issuance of a temporary restraining order and writ of preliminary injunction with the Court of Appeals, which was docketed as CAG.R. SP No. 88092.

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On July 18, 2005, the Court of Appeals issued a temporary restraining order. Thereafter, ABSCBN filed a petition for contempt against PMSI for continuing to rebroadcast Channels 2 and 23 despite the restraining order. The case was docketed as CA- G.R. SP No. 90762. AacSTE On November 14, 2005, the Court of Appeals ordered the consolidation of CA-G.R. SP Nos. 88092 and 90762. In the assailed Decision dated July 12, 2006, the Court of Appeals sustained the findings of the Director-General of the IPO and dismissed both petitions filed by ABS-CBN. 17 ABS-CBN's motion for reconsideration was denied, hence, this petition. ABS-CBN contends that PMSI's unauthorized rebroadcasting of Channels 2 and 23 is an infringement of its broadcasting rights and copyright under the Intellectual Property Code (IP Code); 18 that Memorandum Circular No. 04-08-88 excludes DTH satellite television operators; that the Court of Appeals' interpretation of the must-carry rule violates Section 9 of Article III 19 of the Constitution because it allows the taking of property for public use without payment of just compensation; that the Court of Appeals erred in dismissing the petition for contempt docketed as CA-G.R. SP No. 90762 without requiring respondents to file comment. IcHSCT Respondents, on the other hand, argue that PMSI's rebroadcasting of Channels 2 and 23 is sanctioned by Memorandum Circular No. 04-08-88; that the must-carry rule under the Memorandum Circular is a valid exercise of police power; and that the Court of Appeals correctly dismissed CA-G.R. SP No. 90762 since it found no need to exercise its power of contempt. After a careful review of the facts and records of this case, we affirm the findings of the DirectorGeneral of the IPO and the Court of Appeals. aETADI There is no merit in ABS-CBN's contention that PMSI violated its broadcaster's rights under Section 211 of the IP Code which provides in part: Chapter XIV BROADCASTING ORGANIZATIONS Sec. 211. Scope of Right. — Subject to the provisions of Section 212, broadcasting organizations shall enjoy the exclusive right to carry out, authorize or prevent any of the following acts: AcIaST 211.1. The rebroadcasting of their broadcasts; xxx

xxx

xxx

Neither is PMSI guilty of infringement of ABS-CBN's copyright under Section 177 of the IP Code which states that copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the public performance of the work (Section 177.6), and other communication to the public of the work (Section 177.7). 20 15

Section 202.7 of the IP Code defines broadcasting as "the transmission by wireless means for the public reception of sounds or of images or of representations thereof; such transmission by satellite is also 'broadcasting' where the means for decrypting are provided to the public by the broadcasting organization or with its consent". EAcCHI On the other hand, rebroadcasting as defined in Article 3 (g) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, otherwise known as the 1961 Rome Convention, of which the Republic of the Philippines is a signatory, 21 is "the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization". cSTHAC The Director-General of the IPO correctly found that PMSI is not engaged in rebroadcasting and thus cannot be considered to have infringed ABS-CBN's broadcasting rights and copyright, thus: That the Appellant's [herein respondent PMSI] subscribers are able to view Appellee's [herein petitioner ABS-CBN] programs (Channels 2 and 23) at the same time that the latter is broadcasting the same is undisputed. The question however is, would the Appellant in doing so be considered engaged in broadcasting. Section 202.7 of the IP Code states that broadcasting means "the transmission by wireless means for the public reception of sounds or of images or of representations thereof; such transmission by satellite is also 'broadcasting' where the means for decrypting are provided to the public by the broadcasting organization or with its consent." ETDAaC Section 202.7 of the IP Code, thus, provides two instances wherein there is broadcasting, to wit: THIASE 1. The transmission by wireless means for the public reception of sounds or of images or of representations thereof; and 2. The transmission by satellite for the public reception of sounds or of images or of representations thereof where the means for decrypting are provided to the public by the broadcasting organization or with its consent. It is under the second category that Appellant's DTH satellite television service must be examined since it is satellite-based. The elements of such category are as follows: HIETAc 1.

There is transmission of sounds or images or of representations thereof;

2.

The transmission is through satellite;

3.

The transmission is for public reception; and

4. The means for decrypting are provided to the public by the broadcasting organization or with its consent. DEacIT

16

It is only the presence of all the above elements can a determination that the DTH is broadcasting and consequently, rebroadcasting Appellee's signals in violation of Sections 211 and 177 of the IP Code, may be arrived at. Accordingly, this Office is of the view that the transmission contemplated under Section 202.7 of the IP Code presupposes that the origin of the signals is the broadcaster. Hence, a program that is broadcasted is attributed to the broadcaster. In the same manner, the rebroadcasted program is attributed to the rebroadcaster. DCcIaE In the case at hand, Appellant is not the origin nor does it claim to be the origin of the programs broadcasted by the Appellee. Appellant did not make and transmit on its own but merely carried the existing signals of the Appellee. When Appellant's subscribers view Appellee's programs in Channels 2 and 23, they know that the origin thereof was the Appellee. Aptly, it is imperative to discern the nature of broadcasting. When a broadcaster transmits, the signals are scattered or dispersed in the air. Anybody may pick-up these signals. There is no restriction as to its number, type or class of recipients. To receive the signals, one is not required to subscribe or to pay any fee. One only has to have a receiver, and in case of television signals, a television set, and to tune-in to the right channel/frequency. The definition of broadcasting, wherein it is required that the transmission is wireless, all the more supports this discussion. Apparently, the undiscriminating dispersal of signals in the air is possible only through wireless means. The use of wire in transmitting signals, such as cable television, limits the recipients to those who are connected. Unlike wireless transmissions, in wire-based transmissions, it is not enough that one wants to be connected and possesses the equipment. The service provider, such as cable television companies may choose its subscribers. TcDIaA The only limitation to such dispersal of signals in the air is the technical capacity of the transmitters and other equipment employed by the broadcaster. While the broadcaster may use a less powerful transmitter to limit its coverage, this is merely a business strategy or decision and not an inherent limitation when transmission is through cable. Accordingly, the nature of broadcasting is to scatter the signals in its widest area of coverage as possible. On this score, it may be said that making public means that accessibility is undiscriminating as long as it [is] within the range of the transmitter and equipment of the broadcaster. That the medium through which the Appellant carries the Appellee's signal, that is via satellite, does not diminish the fact that it operates and functions as a cable television. It remains that the Appellant's transmission of signals via its DTH satellite television service cannot be considered within the purview of broadcasting. . . . xxx

xxx

xxx

This Office also finds no evidence on record showing that the Appellant has provided decrypting means to the public indiscriminately. Considering the nature of this case, which is punitive in fact, the burden of proving the existence of the elements constituting the acts punishable rests on the shoulder of the complainant. aEACcS

17

Accordingly, this Office finds that there is no rebroadcasting on the part of the Appellant of the Appellee's programs on Channels 2 and 23, as defined under the Rome Convention. 22 Under the Rome Convention, rebroadcasting is "the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization." The Working Paper 23 prepared by the Secretariat of the Standing Committee on Copyright and Related Rights defines broadcasting organizations as "entities that take the financial and editorial responsibility for the selection and arrangement of, and investment in, the transmitted content". 24 Evidently, PMSI would not qualify as a broadcasting organization because it does not have the aforementioned responsibilities imposed upon broadcasting organizations, such as ABSCBN. EADCHS ABS-CBN creates and transmits its own signals; PMSI merely carries such signals which the viewers receive in its unaltered form. PMSI does not produce, select, or determine the programs to be shown in Channels 2 and 23. Likewise, it does not pass itself off as the origin or author of such programs. Insofar as Channels 2 and 23 are concerned, PMSI merely retransmits the same in accordance with Memorandum Circular 04-08-88. With regard to its premium channels, it buys the channels from content providers and transmits on an as-is basis to its viewers. Clearly, PMSI does not perform the functions of a broadcasting organization; thus, it cannot be said that it is engaged in rebroadcasting Channels 2 and 23. The Director-General of the IPO and the Court of Appeals also 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, to wit: cDIHES (G)

Cable Retransmission

47. When a radio or television program is being broadcast, it can be retransmitted to new audiences by means of cable or wire. In the early days of cable television, it was mainly used to improve signal reception, particularly in so-called "shadow zones", or to distribute the signals in large buildings or building complexes. With improvements in technology, cable operators now often receive signals from satellites before retransmitting them in an unaltered form to their subscribers through cable. 48. In principle, cable retransmission can be either simultaneous with the broadcast overthe-air or delayed (deferred transmission) on the basis of a fixation or a reproduction of a fixation. Furthermore, they might be unaltered or altered, for example through replacement of commercials, etc. In general, however, the term "retransmission" seems to be reserved for such transmissions which are both simultaneous and unaltered. aEACcS 49. The Rome Convention does not grant rights against unauthorized cable retransmission. Without such a right, cable operators can retransmit both domestic and foreign over the air broadcasts simultaneously to their subscribers without permission from the broadcasting organizations or other rightholders and without obligation to pay remuneration. 25 (Emphasis added)

18

Thus, while the Rome Convention gives broadcasting organizations the right to authorize or prohibit the rebroadcasting of its broadcast, however, 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. ISAcHD It must be emphasized that the law on copyright is not absolute. The IP Code provides that: Sec. 184.

Limitations on Copyright. —

184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright: xxx

xxx

xxx

(h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use; EHTCAa The carriage of ABS-CBN's signals by virtue of the must-carry rule in Memorandum Circular No. 04-08-88 is under the direction and control of the government through the NTC which is vested with exclusive jurisdiction to supervise, regulate and control telecommunications and broadcast services/facilities in the Philippines. 26 The imposition of the must-carry rule is within the NTC's power to promulgate rules and regulations, as public safety and interest may require, to encourage a larger and more effective use of communications, radio and television broadcasting facilities, and to maintain effective competition among private entities in these activities whenever the Commission finds it reasonably feasible. 27 As correctly observed by the Director-General of the IPO: IHCacT Accordingly, the "Must-Carry Rule" under NTC Circular No. 4-08-88 falls under the foregoing category of limitations on copyright. This Office agrees with the Appellant [herein respondent PMSI] that the "Must-Carry Rule" is in consonance with the principles and objectives underlying Executive Order No. 436, 28 to wit: The Filipino people must be given wider access to more sources of news, information, education, sports event and entertainment programs other than those provided for by mass media and afforded television programs to attain a well informed, well-versed and culturally refined citizenry and enhance their socio-economic growth: TEcADS WHEREAS, cable television (CATV) systems could support or supplement the services provided by television broadcast facilities, local and overseas, as the national information highway to the countryside. 29 The Court of Appeals likewise correctly observed that: [T]he very intent and spirit of the NTC Circular will prevent a situation whereby station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people, and to permit on the air 19

only those with whom they agreed — contrary to the state policy that the (franchise) grantee like the petitioner, private respondent and other TV station owners, shall provide at all times sound and balanced programming and assist in the functions of public information and education. AEHTIC This is for the first time that we have a structure that works to accomplish explicit state policy goals. 30 Indeed, intellectual property protection is merely a means towards the end of making society benefit from the creation of its men and women of talent and genius. This is the essence of intellectual property laws, and it explains why certain products of ingenuity that are concealed from the public are outside the pale of protection afforded by the law. It also explains why the author or the creator enjoys no more rights than are consistent with public welfare. 31 HADTEC Further, as correctly observed by the Court of Appeals, the must-carry rule as well as the legislative franchises granted to both ABS-CBN and PMSI are in consonance with state policies enshrined in the Constitution, specifically Sections 9, 32 17, 33 and 24 34 of Article II on the Declaration of Principles and State Policies. 35 TcIaHC ABS-CBN was granted a legislative franchise under Republic Act No. 7966, Section 1 of which authorizes it "to construct, operate and maintain, for commercial purposes and in the public interest, television and radio broadcasting in and throughout the Philippines . . . ." Section 4 thereof mandates that it "shall provide adequate public service time to enable the government, through the said broadcasting stations, to reach the population on important public issues; provide at all times sound and balanced programming; promote public participation such as in community programming; assist in the functions of public information and education . . . ." PMSI was likewise granted a legislative franchise under Republic Act No. 8630, Section 4 of which similarly states that it "shall provide adequate public service time to enable the government, through the said broadcasting stations, to reach the population on important public issues; provide at all times sound and balanced programming; promote public participation such as in community programming; assist in the functions of public information and education . . . ." Section 5, paragraph 2 of the same law provides that "the radio spectrum is a finite resource that is a part of the national patrimony and the use thereof is a privilege conferred upon the grantee by the State and may be withdrawn anytime, after due process". TDcAIH In Telecom. & Broadcast Attys. of the Phils., Inc. v. COMELEC, 36 the Court held that a franchise is a mere privilege which may be reasonably burdened with some form of public service. Thus: All broadcasting, whether by radio or by television stations, is licensed by the government. Airwave frequencies have to be allocated as there are more individuals who want to broadcast than there are frequencies to assign. A franchise is thus a privilege subject, among other things, to amendment by Congress in accordance with the constitutional provision that "any such franchise or right granted . . . shall be subject to amendment, alteration or repeal by the Congress when the common good so requires". ECAaTS 20

xxx

xxx

xxx

Indeed, provisions for COMELEC Time have been made by amendment of the franchises of radio and television broadcast stations and, until the present case was brought, such provisions had not been thought of as taking property without just compensation. Art. XII, §11 of the Constitution authorizes the amendment of franchises for "the common good". What better measure can be conceived for the common good than one for free air time for the benefit not only of candidates but even more of the public, particularly the voters, so that they will be fully informed of the issues in an election? "[I]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount". HaEcAC Nor indeed can there be any constitutional objection to the requirement that broadcast stations give free air time. Even in the United States, there are responsible scholars who believe that government controls on broadcast media can constitutionally be instituted to ensure diversity of views and attention to public affairs to further the system of free expression. For this purpose, broadcast stations may be required to give free air time to candidates in an election. Thus, Professor Cass R. Sunstein of the University of Chicago Law School, in urging reforms in regulations affecting the broadcast industry, writes: TAHcCI xxx

xxx

xxx

In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and frequencies through which they transmit broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the performance by the grantee of some form of public service. . . . 37 There is likewise no merit to ABS-CBN's claim that PMSI's carriage of its signals is for a commercial purpose; that its being the country's top broadcasting company, the availability of its signals allegedly enhances PMSI's attractiveness to potential customers; 38 or that the unauthorized carriage of its signals by PMSI has created competition between its Metro Manila and regional stations. SITCEA ABS-CBN presented no substantial evidence to prove that PMSI carried its signals for profit; or that such carriage adversely affected the business operations of its regional stations. Except for the testimonies of its witnesses, 39 no 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 proving by substantial evidence the allegations in the complaint. 40 Mere allegation is not evidence, and is not equivalent to proof. 41 EHcaAI Anyone in the country who owns a television set and antenna can receive ABS-CBN's signals for free. Other broadcasting organizations with free-to-air signals such as GMA-7, RPN-9, ABC5, and IBC-13 can likewise be accessed for free. No payment is required to view the said channels 42 because these broadcasting networks do not generate revenue from subscription

21

from their viewers but from airtime revenue from contracts with commercial advertisers and producers, as well as from direct sales. In contrast, cable and DTH television earn revenues from viewer subscription. In the case of PMSI, it offers its customers premium paid channels from content providers like Star Movies, Star World, Jack TV, and AXN, among others, thus allowing its customers to go beyond the limits of "Free TV and Cable TV". 43 It does not advertise itself as a local channel carrier because these local channels can be viewed with or without DTH television. CDTHSI Relevantly, PMSI's carriage of Channels 2 and 23 is material in arriving at the ratings and audience share of ABS-CBN and its programs. These ratings help commercial advertisers and producers decide whether to buy airtime from the network. Thus, the must-carry rule is actually advantageous to the broadcasting networks because it provides them with increased viewership which attracts commercial advertisers and producers. On the other hand, the carriage of free-to-air signals imposes a burden to cable and DTH television providers such as PMSI. PMSI uses none of ABS-CBN's resources or equipment and carries the signals and shoulders the costs without any recourse of charging. 44 Moreover, such carriage of signals takes up channel space which can otherwise be utilized for other premium paid channels. aSDHCT There is no merit to ABS-CBN's argument that PMSI's carriage of Channels 2 and 23 resulted in competition between its Metro Manila and regional stations. ABS-CBN is free to decide to pattern its regional programming in accordance with perceived demands of the region; however, it cannot impose this kind of programming on the regional viewers who are also entitled to the free-to-air channels. It must be emphasized that, as a national broadcasting organization, one of ABS-CBN's responsibilities is to scatter its signals to the widest area of coverage as possible. That it should limit its signal reach for the sole purpose of gaining profit for its regional stations undermines public interest and deprives the viewers of their right to access to information. Indeed, television is a business; however, the welfare of the people must not be sacrificed in the pursuit of profit. The right of the viewers and listeners to the most diverse choice of programs available is paramount. 45 The Director-General correctly observed, thus: DHEcCT The "Must-Carry Rule" favors both broadcasting organizations and the public. It prevents cable television companies from excluding broadcasting organization especially in those places not reached by signal. Also, the rule prevents cable television companies from depriving viewers in far-flung areas the enjoyment of programs available to city viewers. In fact, this Office finds the rule more burdensome on the part of the cable television companies. The latter carries the television signals and shoulders the costs without any recourse of charging. On the other hand, the signals that are carried by cable television companies are dispersed and scattered by the television stations and anybody with a television set is free to pick them up. HCDAac With its enormous resources and vaunted technological capabilities, Appellee's [herein petitioner ABS-CBN] broadcast signals can reach almost every corner of the archipelago. That in spite of such capacity, it chooses to maintain regional stations, is a business decision. That 22

the "Must-Carry Rule" adversely affects the profitability of maintaining such regional stations since there will be competition between them and its Metro Manila station is speculative and an attempt to extrapolate the effects of the rule. As discussed above, Appellant's DTH satellite television services is of limited subscription. There was not even a showing on part of the Appellee the number of Appellant's subscribers in one region as compared to non-subscribing television owners. In any event, if this Office is to engage in conjecture, such competition between the regional stations and the Metro Manila station will benefit the public as such competition will most likely result in the production of better television programs." 46 All told, we find that the Court of Appeals correctly upheld the decision of the IPO DirectorGeneral that PMSI did not infringe on ABS-CBN's intellectual property rights under the IP Code. The findings of facts of administrative bodies charged with their specific field of expertise, are afforded great weight by the courts, and in the absence of substantial showing that such findings are made from an erroneous estimation of the evidence presented, they are conclusive, and in the interest of stability of the governmental structure, should not be disturbed. 47 Moreover, the factual findings of the Court of Appeals are conclusive on the parties and are not reviewable by the Supreme Court. They carry even more weight when the Court of Appeals affirms the factual findings of a lower fact-finding body, 48 as in the instant case. There is likewise no merit to ABS-CBN's contention that the Memorandum Circular excludes from its coverage DTH television services such as those provided by PMSI. Section 6.2 of the Memorandum Circular requires all cable television system operators operating in a community within Grade "A" or "B" contours to carry the television signals of the authorized television broadcast stations. 49 The rationale behind its issuance can be found in the whereas clauses which state: EaCSTc Whereas, Cable Television Systems or Community Antenna Television (CATV) have shown their ability to offer additional programming and to carry much improved broadcast signals in the remote areas, thereby enriching the lives of the rest of the population through the dissemination of social, economic, educational information and cultural programs; TIHDAa Whereas, the national government supports the promotes the orderly growth of the Cable Television industry within the framework of a regulated fee enterprise, which is a hallmark of a democratic society; Whereas, public interest so requires that monopolies in commercial mass media shall be regulated or prohibited, hence, to achieve the same, the cable TV industry is made part of the broadcast media; Whereas, pursuant to Act 3846 as amended and Executive Order 205 granting the National Telecommunications Commission the authority to set down rules and regulations in order to protect the public and promote the general welfare, the National Telecommunications Commission hereby promulgates the following rules and regulations on Cable Television Systems; SaIEcA

23

The policy of the Memorandum Circular is to carry improved signals in remote areas for the good of the general public and to promote dissemination of information. In line with this policy, it is clear that DTH television should be deemed covered by the Memorandum Circular. Notwithstanding the different technologies employed, both DTH and cable television have the ability to carry improved signals and promote dissemination of information because they operate and function in the same way. ICDSca In its December 20, 2002 letter, 50 the NTC explained that both DTH and cable television services are of a similar nature, the only difference being the medium of delivering such services. They can carry broadcast signals to the remote areas and possess the capability to enrich the lives of the residents thereof through the dissemination of social, economic, educational information and cultural programs. Consequently, while the Memorandum Circular refers to cable television, it should be understood as to include DTH television which provides essentially the same services. In Eastern Telecommunications Philippines, Inc. v. International Communication Corporation, 51 we held: The NTC, being the government agency entrusted with the regulation of activities coming under its special and technical forte, and possessing the necessary rule-making power to implement its objectives, is in the best position to interpret its own rules, regulations and guidelines. The Court has consistently yielded and accorded great respect to the interpretation by administrative agencies of their own rules unless there is an error of law, abuse of power, lack of jurisdiction or grave abuse of discretion clearly conflicting with the letter and spirit of the law. 52 SEcADa With regard to the issue of the constitutionality of the must-carry rule, the Court finds that its resolution is not necessary in the disposition of the instant case. One of the essential requisites for a successful judicial inquiry into constitutional questions is that the resolution of the constitutional question must be necessary in deciding the case. 53 In Spouses Mirasol v. Court of Appeals, 54 we held: As a rule, the courts will not resolve the constitutionality of a law, if the controversy can be settled on other grounds. The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid, absent a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers. This means that the measure had first been carefully studied by the legislative and executive departments and found to be in accord with the Constitution before it was finally enacted and approved. 55 caIETS The instant case was instituted for violation of the IP Code and infringement of ABS-CBN's broadcasting rights and copyright, which can be resolved without going into the constitutionality of Memorandum Circular No. 04-08-88. As held by the Court of Appeals, the only relevance of the circular in this case is whether or not compliance therewith should be considered manifestation of lack of intent to commit infringement, and if it is, whether such lack of intent is a valid defense against the complaint of petitioner. 56

24

The records show that petitioner assailed the constitutionality of Memorandum Circular No. 0408-88 by way of a collateral attack before the Court of Appeals. In Philippine National Bank v. Palma, 57 we ruled that for reasons of public policy, the constitutionality of a law cannot be collaterally attacked. A law is deemed valid unless declared null and void by a competent court; more so when the issue has not been duly pleaded in the trial court. 58 As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if not raised in the 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. 59 In Philippine Veterans Bank v. Court of Appeals, 60 we held: We decline to rule on the issue of constitutionality as all the requisites for the exercise of judicial review are not present herein. Specifically, the question of constitutionality will not be passed upon by the Court unless, at the first opportunity, it is properly raised and presented in an appropriate case, adequately argued, and is necessary to a determination of the case, particularly where the issue of constitutionality is the very lis mota presented. . . . 61 EHSIcT Finally, we find that the dismissal of the petition for contempt filed by ABS-CBN is in order. Indirect contempt may either be initiated (1) motu proprio by the court by issuing an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt or (2) by the filing of a verified petition, complying with the requirements for filing initiatory pleadings. 62 ABS-CBN filed a verified petition before the Court of Appeals, which was docketed CA G.R. SP No. 90762, for PMSI's alleged disobedience to the Resolution and Temporary Restraining Order, both dated July 18, 2005, issued in CA-G.R. SP No. 88092. However, after the cases were consolidated, the Court of Appeals did not require PMSI to comment on the petition for contempt. It ruled on the merits of CA-G.R. SP No. 88092 and ordered the dismissal of both petitions. acEHSI ABS-CBN argues that the Court of Appeals erred in dismissing the petition for contempt without having ordered respondents to comment on the same. Consequently, it would have us reinstate CA-G.R. No. 90762 and order respondents to show cause why they should not be held in contempt. It bears stressing that the proceedings for punishment of indirect contempt are criminal in nature. The modes of procedure and rules of evidence adopted in contempt proceedings are similar in nature to those used in criminal prosecutions. 63 While it may be argued that the Court of Appeals should have ordered respondents to comment, the issue has been rendered moot in light of our ruling on the merits. To order respondents to comment and have the Court of Appeals conduct a hearing on the contempt charge when the main case has already been disposed of in favor of PMSI would be circuitous. Where the issues have become moot, there is no justiciable controversy, thereby rendering the resolution of the same of no practical use or value. 64 aTcSID

25

WHEREFORE, the petition is DENIED. The July 12, 2006 Decision of the Court of Appeals in CA-G.R. SP Nos. 88092 and 90762, sustaining the findings of the Director-General of the Intellectual Property Office and dismissing the petitions filed by ABS-CBN Broadcasting Corporation, and the December 11, 2006 Resolution denying the motion for reconsideration, are AFFIRMED. 2009jur SO ORDERED. Austria-Martinez, Chico-Nazario, Nachura and Leonardo-de Castro, * JJ., concur. 2009jur

26