(Abscbn v Pmsi)

7/27/2019 (Abscbn v Pmsi)

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ABS-CBN vs. PMSI

Shorter summary:

ABS-CBN is engaged in television and radio broadcasting through wireless andsatellite means. Philippine Multi-Media Systems Inc. (PMSI for brevity) is the

operator of Dream Broadcasting System, which provides direct-to-home (DTH)television via satellite to its subscribers all over the Philippines.PMSI was granted legislative franchise under RA 8630 to install, operate andmaintain a nationwide DTH satellite service and is obligated under by NTCMemorandum Circular No. 4-08-88 which requires all cable television systemoperators operating in a community within Grade A or B contours to carry thetelevision signals of the authorized television broadcast stations (must-carry rule).

ABS-CBN filed a complaint with Intellectual Property Office (IPO) for violation of lawsinvolving property rights. It alleged that PMSIs unauthorized rebroadcasting ofChannels 2 and 23 infringed on its broadcasting rights and copyright and that the

NTC circular only covers cable television system operators and not DTH satellitetelevision operators.

W/N PMSI infringed on ABS-CBNs broadcasting rights and copyright -- No

(1) NO. PMSI does not infringe on ABS-CBNs broadcasting rights under the IP Codeas PMSI is not engaged in rebroadcasting of Channels 2 and 23. Broadcasting isdefined as the transmission by wireless means for the public reception of sounds orof images or of representations thereof; such transmission by satellite is alsobroadcasting where the means for decrypting Are provided to the public by thebroadcasting organization or with its consent. Rebroadcasting, which is prohibitedby the IP Code, is the simultaneous broadcasting by one broadcasting organizationof the broadcast of another broadcasting organization.

ABS-CBN creates and transmits its own signals; PMSI merely carries such signalswhich the viewers receive in its unaltered form. PMSI does not produce, select, ordetermine the programs to be shown in Channels 2 and 23. Likewise, it does notpass itself off as the origin or author of such programs. Insofar as Channels 2 and 23are concerned, PMSI merely retransmits the same in accordance with NTCMemorandum Circular 04-08-88. Sec 184 of the IP law provides that:

Sec 184. Limitations on Copyright- notwithstanding the provisions of ch V, thefollowing acts shall not constitute infringement of copyright:(h) the use made of a work by or under the direction or control of the Government,by the National library or by the educational, scientific or professional institutionswhere such us is in the public and is compatible with fair use.

PMSI was granted a legislative franchise under Republic Act No. 8630, Section 4 ofwhich similarly states that it shall provide adequate public service time to enablethe government, through the said broadcasting stations, to reach the population onimportant public issues; provide at all times sound and balanced programming;


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promote public participation such as in community programming; assist in thefunctions of public information and education.

The imposition of the must-carry rule is within the NTCs power to promulgate rulesand regulations, as public safety and interest may require, to encourage a largerand more effective use of communications, radio and television broadcasting

facilities, and to maintain effective competition among private entities.

Doctrine:

Sec 184. Limitations on Copyright- notwithstanding the provisions of ch V, thefollowing acts shall not constitute infringement of copyright:(h) the use made of a work by or under the direction or control of the Government,by the National library or by the educational, scientific or professional institutionswhere such us is in the public and is compatible with fair use.

Facts:

ABS-CBN is engaged in television and radio broadcasting through wireless andsatellite means while Philippine Multi-Media Systems Inc. (PMSI for brevity), theoperator of Dream Broadcasting System provides direct-to-home (DTH) televisionvia satellite to its subscribers all over the Philippines.

PMSI was granted legislative franchise under RA 8630 to install, operate andmaintain a nationwide DTH satellite service and is obligated under by NTCMemorandum Circular No. 4-08-88, Section 6.2 of which requires all cable televisionsystem operators operating in a community within Grade A or B contours tocarry the television signals of the authorized television broadcast stations (must-carry rule).

ABS-CBN filed a complaint with Intellectual Property Office (IPO) for violation of lawsinvolving property rights. It alleged that PMSIs unauthorized rebroadcasting ofChannels 2 and 23 infringed on its broadcasting rights and copyright and that theNTC circular only covers cable television system operators and not DTH satellitetelevision operators. Moreover, NTC Circular 4-08-88 violates Sec. 9 of Art. III of theConstitution because it allows the taking of property for public use without paymentof just compensation.

PMSI argued that its rebroadcasting of Channels 2 and 23 is sanctioned byMemorandum Circular No. 04-08-88; that the must-carry rule under theMemorandum Circular is a valid exercise of police power.

IPO and Court of Appeals ruled in favor of PMSI.

Issues:

(1) w/n PMSI infringed on ABS-CBNs broadcasting rights and copyright -- No

(2) w/n PMSI is covered by the NTC Circular (must-carry rule) -- Yes


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Held:

(1) NO. PMSI does not infringe on ABS-CBNs broadcasting rights under the IP Codeas PMSI is not engaged in rebroadcasting of Channels 2 and 23. Broadcasting isdefines as the transmission by wireless means for the public reception of sounds or

of images or of representations thereof; such transmission by satellite is alsobroadcasting where the means for decrypting Are provided to the public by thebroadcasting organization or with its consent. Rebroadcasting, which is prohibitedby the IP Code, is the simultaneous broadcasting by one broadcasting organizationof the broadcast of another broadcasting organization.

Sec 202.7 of the IP Code provides 2 instances wherein there is broadcasting:1. The transmission by wireless means for the public reception of sounds or ofimages or of representations thereof2. The transmission by satellite for the public reception of sounds or of images or ofrepresentations thereof where the means for decrypting are provided to the publicby the broadcasting organization or with its consent.

ABS-CBN creates and transmits its own signals; PMSI merely carries such signalswhich the viewers receive in its unaltered form. PMSI does not produce, select, ordetermine the programs to be shown in Channels 2 and 23. Likewise, it does notpass itself off as the origin or author of such programs. Insofar as Channels 2 and 23are concerned, PMSI merely retransmits the same in accordance with NTCMemorandum Circular 04-08-88.

Sec 184 of the IP law provides that:Sec 184. Limitations on Copyright- notwithstanding the provisions of ch V, thefollowing acts shall not constitute infringement of copyright:(h) the use made of a work by or under the direction or control of the Government,

by the National library or by the educational, scientific or professional institutionswhere such us is in the public and is compatible with fair use.

PMSI was granted a legislative franchise under Republic Act No. 8630, Section 4 ofwhich similarly states that it shall provide adequate public service time to enablethe government, through the said broadcasting stations, to reach the population onimportant public issues; provide at all times sound and balanced programming;promote public participation such as in community programming; assist in thefunctions of public information and education.

The Must-Carry Rule favors both broadcasting organizations and the public. Itprevents cable television companies from excluding broadcasting organizationespecially in those places not reached by signal. Also, the rule prevents cabletelevision companies from depriving viewers in far-flung areas the enjoyment ofprograms available to city viewers.

The carriage of ABS-CBNs signals by virtue of the must-carry rule in MemorandumCircular No. 04-08-88 is under the direction and control of the government thoughthe NTC which is vested with exclusive jurisdiction to supervise, regulate andcontrol telecommunications and broadcast services/facilities in the Philippines. Theimposition of the must-carry rule is within the NTCs power to promulgate rules and


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regulations, as public safety and interest may require, to encourage a larger andmore effective use of communications, radio and television broadcasting facilities,and to maintain effective competition among private entities.

(2) YES. DTH satellite tv operators is covered under the NTC Circular whichrequires all cable television system operators to carry the television signals of

the authorized television broadcast stations. The Director-General of the IPO andthe Court of Appeals correctly found that PMSIs services are similar to a cabletelevision system because the services it renders fall under cable retransmission.

Thus, PMSI, being a DTH Satellite TV operator is covered by the NTC Circular.

Documents

(Abscbn v Pmsi)