JUrISdIctIOn repOrt: pHILIppIneS
cOpYrIGHt LImItAtIOn
And brOAdcAStInG rIGHtS
Augusto r. bundang and Anne mariae celeste V. Jumadla
Sapalo Velez Bundang & Bulilan
On January 19, 2009, the Supreme Court promulgated the ABS-CBN
broadcasting and rebroadcasting
Broadcasting Corporation v. Philippine Multi-Media System decision. It
declared the National Telecommunications Commission (NTC) requirement
The court adopted the definition of rebroadcasting in Article 3(g) of the
that cable television system operators carry the free-to-air television signals International Convention for the Protection of Performers, Producers of
of authorised television broadcast stations as a limitation on copyright. Phonograms and Broadcasting Organizations (1961 Rome Convention),
The Supreme Court also illustrated the meaning of ‘broadcasting’ and which refers to “the simultaneous broadcasting by one broadcasting
‘rebroadcasting’ within a Philippine setting. organization of the broadcast of another broadcasting organization”.
ABS-CBN Broadcasting Corporation (ABS-CBN) broadcasts television
Broadcasting, as defined in Section 202.7 of the IP Code is “the transmission
programmes produced or purchased by it, or licensed to it, by other producers
by wireless means for the public reception of sounds or of images or of
through Channels 2 and 23. Philippine Multi-Media System (PMSI) delivers
representations thereof; such transmission by satellite is also ‘broadcasting’
digital direct-to-home (DTH) television via satellite to its subscribers and
where the means for decrypting are provided to the public by the broadcasting
offered, as part of its service, ABS-CBN Channels 2 and 23.
organization or with its consent”.
ABS-CBN demanded that PMSI cease and desist from rebroadcasting these
PMSI has not been shown to provide the public with decrypting means
channels. It filed a complaint with the Intellectual Property Office (IPO)
and, therefore, its service does not fall under the IP Code definition of
for Violation of Laws Involving (Intellectual) Property Rights, alleging that
broadcasting nor rebroadcasting under the Rome Convention.
PMSI’s unauthorised rebroadcasting of Channels 2 and 23 infringed its
broadcasting rights and copyright. With reference to the Working Paper (Eighth Session, Geneva, November 4-8,
2002) prepared by the Secretariat of the Standing Committee on Copyright
the ‘must carry’ rule and Related Rights, PMSI was found not to be a broadcasting organisation, as
it does not “take the financial and editorial responsibility for the selection and
The Supreme Court considered the nature of the legislative franchises
arrangement of, and investment in, the transmitted content”.
granted to both ABS-CBN and PMSI. It said these franchises may be
reasonably burdened with the requirement to broadcast some form of public
Rather, PMSI merely carries existing signals in unaltered form. It does
service, such as the ‘must carry’ rule imposed by the NTC.
not produce, select or determine the programmes to be shown and does
not pass itself off as the origin or author of such programmes. It merely
The High Court emphasised that the law on copyright is not absolute. It
retransmits ABS-CBN’s free-to-air channels in accordance with the must
cited Section 184 of the Intellectual Property (IP) Code, Republic Act No.
8293, which provides copyright limitation on the use made of a work under
carry rule, buys premium channels from content providers and transmits
government direction or control where use is in the public interest and
on an ‘as is’ basis.
compatible with ‘fair use’.
Since PMSI does not qualify as a broadcasting organisation, its retransmission
The broadcast by PMSI of ABS-CBN’s programmes by virtue of the must
of ABS-CBN’s signals does not constitute rebroadcasting. PMSI thus
carry rule comes under the direction and control of the government
cannot be considered to have infringed ABS-CBN’s broadcasting rights
and specifically the NTC, which manages this power as public safety
under Section 211 of the IP Code, which gives broadcasting organisations
and interest require. It is also in consonance with Sections 9, 17 and
the exclusive right to carry out, authorise or prevent, among others, the
24 of Article II on the Declaration of Principles and state Policies of
rebroadcasting of their broadcasts.
the Constitution, which declare that the state “…through policies that
provide adequate social services…shall…promote total human liberation
and development…recognis(ing) the vital role of communication and
information in nation-building”.
Augusto R. Bundang is a senior partner at Sapalo Velez Bundang & Bulilan.
He can be contacted at: info@sapalovelez.com
Accordingly, the Supreme Court found the must carry rule to fall under
the limitations on copyright of Section 184. Hence, PMSI’s carriage of Anne Mariae Celeste V. Jumadla is an associate at Sapalo Velez Bundang &
ABS-CBN’s free-to-air channels does not represent copyright infringement. Bulilan. She can be contacted at: info@sapalovelez.com
www.worldipreview.com World Intellectual property review September/October 2009 69
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