10-2011-00027 Complainant, } } For: Violation of Sec

lNTEUECTUAl PROPERTY OFACEOF THE PHILIPPINES

GMA NE1WORK, INC., } IPV No. 10-2011-00027 Complainant, } } For: Violation of Sec. 211 of -versus- } IP Code with Damages } PEOPLE BROADCASTING } SERVICE, INC., } Respondent. } x------x Decision No. 2021--=tA,--",,~,--_

DECISION

GMA NETWORK, INC.l ("Complainant") filed a Complaint on 11 November 2011 with prayer for damages against PEOPLE BROADCASTING SERVICE, INC. ("Respondent")2 for violation of Section 211 of Rep . Act No. 8293, also known as the Intellectual Property Code of the Philippines, as amended, ("IP Code").

This Bureau issued on 16 November 2011 a Notice to Answer and served a copy thereof on the Respondent. After the Respondent filed its Answer on 22 December 2011, the case was referred to this Bureau's Alternative Dispute Resolution Services for mediation thru Order No. 2012-1 issued on 06 January 2012. During the pre-mediation conference however, only the Respondent appeared and manifested that it does not want to submit to mediation. The Respondent also filed on 16 January 2012 a "Motion to Dismiss" which was opposed by the Complainant via "Comment/Opposition" filed on 20 January 2012. On 24 February 2012, the Hearing Officer issued Order No. 2012-16 denying the Respondent's motion to dismiss.

Accordingly, the Hearing Officer issued 05 March 2012 a "Notice of Pre Trial Conference". The Respondent filed its "Pre-Trial Brief' on 29 March 2012 while the Complainant did so on 10 April 2012. During the pre-trial conference on 11 May 2012, Respondent moved to amend its Complaint which was granted by the Hearing Officer. On 20 June 2012, the Complainant filed its Amended Complaint alleging the following, among other things:

"3 . Complainant GMA is engaged in the business of nationwide radio and television broadcasting with central station at GMA Network Center, Quezon City, and operates TV and Radio stations in other cities and provinces in the Philippines.

I A domestic corporation located in Quezon City. 2 A domestic corporation located in Pasig City. www.ipophil.gov.ph Intellectual Property Center e [email protected] #28 Upp er McKinley Road McKinl ey Hill Town Center o +632-2386300 Fort Bonifacio, Taguig City +632-5539480 1634 Philippine s r------flJ , <.

"4. On May 7, 2007, Solar Entertainment Corporation ('Solar', for brevity) obtained from Emmanuel D. Pacquiao (also known as 'PACMAN') and MP Promotions, Inc. the exclusive broadcasting rights to any and all future boxing bouts featuring PACMAN versus any opponent in any venue or territory;

"5. Thereafter, or in March 2011, complainant GMA and Solar entered into a Radio Broadcast License Agreement whereby Solar assigned the exclusive radio broadcasting rights to the May 8, 20 II boxing match between PACMAN and Shane Mosley (hereafter referred to as the 'Fight') to complainant GMA .

5.1 Aside from the exclusive radio broadcast rights in the Philippines to the Fight, Solar also granted complainant GMA the right to do a local annotation of the Fight in various dialects;

5.2 As consideration to the grant of said rights, complainant GMA paid solar the amount of P2 miIlion;

"6. In order to give notice and fair warning to other radio stations that complainant GMA had the exclusive radio broadcast rights to the Fight, complainant GMA and Solar sent a letter dated May 4, 20 II to respondent PBS, among others.

xxx

"7. On the day of the Fight, Complainant GMA monitored the radio broadcasts of various radio stations and discovered that respondent PBS was airing a blow-by-blow account of the Fight over its Star FM station. xxx

7.1. Upon discovering that respondent PBS had a correspondent at the Fight and had a 'hook-up' with said correspondent who was giving a blow-by-blow account detailing every moment of the two (2) boxers despite the notice sent by Solar and complainant GMA, Mr. Roubbin James Aban , the head of complainant GMA's monitoring team, called up respondent PBS at the start of the Fight. The person at the Star FM station merely said'sige po, sige po' when informed that complainant GMA owned the exclusive radio broadcast rights to the Fight and warned that respondent PBS should stop its blow-by-blow coverage thereof;

"8. When Mr. Aban noticed that respondent PBS was still airing a blow-by blow account of the Fight, Mr. Aban again called up respondent PBS and reiterated his warning that the latter should cease from its blow-by-blow coverage of the Fight;

"9. Respondent PBS defied said warnings and continued its coverage of the Fight until it ended;

" 10. Respondent PBS' unauthorized broadcast of the Fight accounts to piracy and constitutes a deliberate infringement of the rights which complainant GMA acquired from Solar to exclusively cover and broadcast the Fight over radio;

10.1 The exclusive right to broadcast the PACMAN-Mosley fight over the radio was assigned by Solar to complainant GMA, consequently, GMA possessed the corresponding copyright over the broadcast. This copyright emanates from the time complainant GMA recorded and broadcast the PACMAN-Mosley fight. as that from that moment, and with ample notice to respondent PBS, it held exclusive rights to make the said radio broadcast. Thus, when respondent PBS made a parallel and predatory simultaneous coverage, a detailed blow-by-blow account, of the said fight in its radio station, it infringed on the right of GMA to exclusively broadcast the fight

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over the radio. It is clear that respondent PBS violated complainant GMA's copyright over its broadcast.

10.2 It has been held that simultaneously-recorded transmIssIons of live performances and sporting events are protected by copyright laws (National Basketball Association vs. Motorola, Inc., USCA 2nd Cir. [1-30-19971, 105 F.3d 841).

10.3 As sect ion 211 of the Intellectual Property Code (Republic Act No. 8293), gives protection to broadcasters against rebroadcast of their broadcast, there is more reason to prevent an unauthorized person from usurping the exclusive economic right of a broadcaster in making its broadcast, by making a simultaneous broadcast of the very same event. Rebroadcast as is a simultaneous broadcast violates the same economic right to the broadcast held by a broadcaster.

10.4 Based on the foregoing, it is undisputed that this Honorable Office has jurisdiction over the complainant against respondent PBS for infringement of GMA 's copyright over the broadcast ofthe fight.

" I I. As a result ofsuch piracy, complainant GMA incurred actual damages in the amount of Php 2,000,000.00 representing the cost and expenses incurred by complainant GMA in acquiring the exclusive radio broadcast rights in the Philippines to the Fight;

" 12. By way of example and correction, for public good and to serve a lesson for having acted in bad faith, malice, wanton and malevolent manner, respondent PBS should pay complainant exemplary damages in the amount of Php 100,000.00;

" 13. Due to aforementioned unlawful acts of respondent PBS, complainant GMA was forced to litigate and engage the services of counsel at agreed attorney's fees of the services of counsel at agreed attorney's fees of Php 500,000.00 for which respondent should be held liable;

" 14. Further, complainant GMA incurred and stands to incur litigation expenses in the amount of Php 300,000.00 for which responded should be held liable to complainant GMA."

On 12 July 2012, the Respondent filed its "Answer (To: Amended Complaint)" alleging, among other things, the following Special and Affirmative Defenses:

" I. THE BUREAU OF LEGAL AFFAIRS HAS NO JURISDICTION OVER THIS CASE BECAUSE NO VIOLATION OF INTELLECTUAL PROPERTY RIGHT IS INVOLVED.

"a. What is involved in the present complaint is the alleged right of complainant to do a local annotation of a boxing match which per se is not an intellectual property right under R.A. 8293 otherwise known as the Intellectual Property Code (or OP Code) ;

"b. The right to perform a local annotation of a sports event is a property right arising from contract enforceable not via an administrative complaint before the Intellectual Property Office, but thru an ordinary civil action before the Regional Trial Court.

3 . ~ "II. COMPLAINANT IS NOT ENTITLED TO AN AWARD FOR DAMAGES BECAUSE IT DID NOT ACQUIRE BROADCAST RIGHTS FROM TOP RANK, INC., NOR FROM ANY OF ITS AUTHORIZED LICENSEES."

On 13 August 2012, the Hearing Officer issued the "Pre-Trial Order".

The presented as witnesses Mr. Roubbin James N. Aban and Ms. Luz Annalee Escudero. It filed its "Formal Offer of Evidence" on 02 September 2014, to wit:

1. Exhibit "C" and sub-markings - Transcript of Star FM's broadcast of the Pacquio-Mosley boxing match; 2. Exhibits "D-1" Compact discs containing the recording of STAR FM's broadcast of the Pacquio-Mosley boxing match; 3. Exhibit "E" - Compact disc containing DZBB broadcast of the Fight; 4. Exhibit "F" and sub-markings - Transcript of DZBB's broadcast of the Fight; 5. Exhibit "G" and sub-markings - Judicial Affidavit of Roubbin James N. Aban; 6. Exhibit "H" - License Agreement dated 07 May 2007; 7. Exhibit "I" - Letter Contract dated 12 August 2009; 8. Exhibit "J" -Radio Broadcast License Agreement between GMA and Solar; 9. Exhibit "K" - Letter dated 04 May 2011 addressed to PBS; and 10. Exhibit "L" and sub-marking - Affidavit of Luz Annalee Ong-Escudero.

On 03 October 2014, the Hearing Officer issued Order No. 2014-231 admitting the Complainant's exhibits.

For its part, the Respondent presented Mr. Elmer B. Acol and Hon. Monico O. Puentevella as witnesses. The Respondent filed its "Formal Offer of Evidence" on 02 December 2015, to wit:

1. Exhibit "2" - Judicial Affidavit of Elmer B. Acol; and 2. Exhibit "3" -Judicial Affidavit of Mayor Monico O. Puentevella.

On 18 December 2015, Complainant filed its "Comment (To Respondent's Formal Offer of Evidence)". The Hearing Officer issued Order No. 2016 - 58 on 17 March 2016 admitting the Respondent's documentary evidence and directing the parties to submit their respective memorandum. On 10 May 2016, the parties filed their respective Memoranda.

The issues to be resolved in this case are:

1. Whether or not the Bureau of Legal Affairs has jurisdiction over the case;

2. Whether or not Respondent violated Section 212 of the IP Code; and

4 .;(Y 3. Whether or not the parties are entitled to the damages prayed for.

On the first issue, the Respondent contends that the BLA has no jurisdiction over the case there being no copyright or economic right violated. According to Respondent, what GMA seeks to enforce against PBS is its alleged exclusive right to perform a local annotation of the Pacquiao-Mosley fight arising from its Radio Broadcast License Agreement with Solar Entertainment Corporation.

In this regard, Sec . 10.2 par. (a) of Rep. Act No. 8293, also known as the Intellectual Property Code of the Philippines, as amended, ("IP Code"), provides:

Section 10. The Bureau of Legal Affairs. - The Bureau of Legal Affairs shall have the following function.

xxx

10.2. (a) Exercise original jurisdiction in administrative complaints for violations of laws involving intellectual property rights: Provided, That its jurisdiction is limited to complaints where the total damages claimed are not less than Two hundred thousand pesos (P200,000): Provided further, That availment of the provisional remedies may be granted in accordance with the Rules of Court. The Director of Legal Affairs shall have the power to hold and punish for contempt all those who disregard orders or writs issued in the course of the proceedings.

A reading of the complaint shows that the Complainant's cause of action is based on Sec. 211 of the IP Code which refers to the broadcasting right of a broadcasting organization, to wit:

SECTION 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 :

211.1. The rebroadcasting oftheir broadcasts;

21 1.2. The recording in any manner, including the making of films or the use of video tape, of their broadcasts for the purpose of communication to the public of television broadcasts of the same; and

211.3. The use ofsuch records for fresh transmissions or for fresh recording.

Thus, this Bureau has jurisdiction over the case.

Going now to the second issue, it must be emphasized that sports event per se forms part of the news of the day and as such are not subject of copyright protection. Sec. 175 of the IP Code provides:

Section 175. Unprotected Subject Matter. - Notwithstanding the provisions of Sections 172 and 173, no protection shall extend, under this law, to any idea, procedure, system, method or operation, concept, principle, discovery or mere data as such , even if they are expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts having the character of mere items of press information; or any official

5 . ~ text of a legislative, administrative or legal nature, as well as any official translation thereof (n) [Underlining supplied]

While foreign jurisprudence is part of the Philippine legal system, some of foreign decisions or judgments on the subject matter of intellectual property could nevertheless be instructive. In the United States case of NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997)3 it was held:

In our view, the underlying basketball games do not fall within the subject matter of federal copyright protection because they do not constitute "original works of authorship" under 17 U.S.C. § 102(a). Section 102(a) lists eight categories of "works of authorship" covered by the act, including such categories as "literary works," "musical works," and "dramatic works.v- The list does not include athletic events, and, although the list is concededly non-exclusive, such events are neither similar nor analogous to any of the listed categories. Sports events are not "authored" in any common sense of the word. There is, of course, at least at the professional level, considerable preparation for a game. However, the preparation is as much an expression of hope or faith as a determination of what will actually happen. Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script. Preparation may even cause mistakes to succeed, like the broken play in football that gains yardage because the opposition could not expect it. Athletic events may also result in wholly unanticipated occurrences, the most notable recent event being in a championship baseball game in which interference with a fly ball caused an umpire to signal erroneously a home run. What "authorship" there is in a sports event , moreover, must be open to copying by competitors iffans are to be attracted. If the inventor of the T-formation in football had been able to copyright it, the sport might have come to an end instead of prospering. Even where athletic preparation most resembles authorship--figure skating, gymnastics, and, some would uncharitably say, professional wrestling--a performer who conceives and executes a particularly graceful and difficult--or, in the case of wrestling, seemingly painful--acrobatic feat cannot copyright it without impairing the underlying competition in the future . A claim of being the only athlete to perform a feat doesn't mean much ifno one else is allowed to try. For many of these reasons, Nimmer on Copyright concludes that the" [f]ar more reasonable" position is that athletic events are not copyrightable. M. Nimmer & D. Nimmer, Nimmer on Copyright § 2.09 [F] at 2-170.1 (1996). Nimmer notes that, among other problems, the number ofjoint copyright owners would arguably include the league, the teams, the athletes, umpires, stadium workers and even fans, who all contribute to the "work." Concededly, case law is scarce on the issue of whether organized events themselves are copyrightable, but what there is indicates that they are not. See Production Contractors, Inc. v. WGN Continental Broadcasting Co., 622 F. Supp. 1500 (N.D. Ill. 1985) (Christmas parade is not a work of authorship entitled to copyright protection). In claiming a copyright in the underlying games, the NBA relied in part on a footnote in Baltimore Orioles, Inc. v. Major League Baseball Players Assn. , 805 F.2d 663, 669 n. 7 (7th Cir. 1986), cert. denied, 480 U.S. 941, 107 S. Ct. 1593, 94 L. Ed. 2d 782 (1987), which stated that the" [p]Iayers' performances" contain the "modest creativity required for copyright ability." However, the court went on to state, "Moreover, even if the [p]layers' performances were not sufficiently creative, the [p]layers agree that the cameramen and director contribute creative labor to the telecasts." This last sentence indicates that the court was considering the copyright ability of telecasts--not the underlying games, which obviously can be played without cameras. We believe that the lack of case law is attributable to a general understanding that athletic events were, and are, uncopyrightable. Indeed, prior to 1976, there was even doubt that broadcasts describing or depicting such events, which have a far stronger case for copyrightability than the events themselves, were entitled to copyright protection.

3 Available at https:/llaw.justia.com/cases/federal/appellate-courtsIF3/l05/841/598844/

6 Corollarily, our own Supreme Court in ABS-CBN Corporation v. Felipe Gozon, et.al», explained:

News or the event itself is not copyrightable. However, an event can be captured and presented in a specific medium. As recognized by this court in Joaquin, television "involves a whole spectrum of visuals and effects, video and audio." News coverage in television involves framing shots, using images , graphics, and sound effects. It involves creative process and originality. Television news footage is an expression ofthe news.

In the United States, a line of cases dwelt on the possibility of television newscasts to be copyrighted. Most of these cases focused on private individuals' sale or resale of tapes of news broadcasts. Conflicting decisions were rendered by its courts. Noteworthy, however, is the District Court's pronouncement in Pacific & Southern Co. v. Duncan, which involves a News Monitoring Service's videotaping and sale ofWXIA-TV's news broadcasts:

It is axiomatic that copyright protection does not extend to news "events" or the facts or ideas which are the subject of news reports. Miller v. Universal City Studios, Inc., 650 F.2d 1365,1368 (5th Cir. 1981); Wainwright Securities, Inc. v. Wall Street Transcript Corp ., 558 F.2d 91,95 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978). But it is equally well-settled that copyright protection does extend to the reports themselves, as distinguished from the substance of the information contained in the reports. Wainwright, 558 F.2d at 95; International News Service v. Associated Press, 248 U.S. 215 , 39 S.Ct. 68, 63 L.Ed. 211 (1918); see Chicago Record-Herald Co. v. Tribune Assn., 275 F. 797 (7th Cir.1921); I Nimmer on Copyright § 2.II[B] (1983). Copyright protects the manner of expression of news reports, "the particular form or collocation of words in which the writer has communicated it." International News Service, 248 U.S. at 234, 39 S.Ct. at 70. Such protection extends to electronic news reports as well as written reports. Seel7 U.S.c. § 102(a) (5), (6), and (7); see also Iowa State University Research Foundations, Inc. v. American Broadcasting Cos., 621 F.2d 57, 61 (2d Cir. (980) .99 (Emphasis supplied)

The idea/expression dichotomy has long been subject to debate in the field of copyright law. Abolishing the dichotomy has been proposed, in that non-protectibility of ideas should be re-examined, ifnot stricken, from decisions and the law:

If the underlying purpose of the copyright law is the dual one expressed by Lord Mansfield, the only excuse for the continuance of the idea-expression test as a judicial standard for determining protectibility would be that it was or could be a truly useful method of determining the proper balance between the creator's right to profit from his work and the public's right that the "progress of the arts not be retarded."

. .. [A]s used in the present-day context[,] the dichotomy has little or no relationship to the policy which it should effectuate. Indeed, all too often the sweeping language of the courts regarding the non-protectibility of ideas gives the impression that this is of itself a policy of the law, instead of merely a clumsy and outdated tool to achieve a much more basic end.

The idea/expression dichotomy is a complex matter if one is trying to determine whether a certain material is a copy of another. This dichotomy would be more relevant in determining, for instance, whether a stage play was an infringement of an author's book involving the same characters and setting. In this case, however, respondents admitted that the material under review - which is the subject of the controversy - is an exact copy of the or iginal. Respondents did not subject ABS-CBN's footage to any editing of their own. The

'G.R. No. 195956, March 11,2015

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news footage did not undergo any transformation where there is a need to track elements of the original.

Thus, the underlying boxing bout between Pacquiao and Mosley is not protected by copyright as they form part of the news of the day. However, the broadcasting of such fight by a broadcasting organization is protected as a neighboring and related right under the IP Code. Complainant's causes of action are anchored on Sec. 211 of the IP Code as quoted above, which is a neighboring right or related right. Corollary, Sec. 212 of the IP Code provides:

CHAPTER XV LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. - The provisions of Chapter VIII shall apply mutatis mutandis to the rights of performers, producers of sound recordings and broadcasting organizations.

A "broadcasting organization" is a natural or juridical person duly authorized to engage in broadcasting." On the other hand, "broadcasting" is 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."

The right of a broadcasting organization or the broadcasting right is one of the neighboring or related right provided under the IP Code. Neighboring or related right protect the legal interests of certain persons and legal entities that contribute to making works available to the public or that produce subject matter which, while not qualifying as works under the copyright systems of all countries, contains sufficient creativity or technical and organizational skill to justify recognition of a copyright-like property right. The law of related rights deems that the productions they are related to the protection of works of authorship under copyright."

Complainant is a broadcasting organization and has the rights under Sec. 211 of the IP Code, to wit:

SECTION 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 :

211 .1. The rebroadcasting oftheir broadcasts;

211.2. The recording in any manner, including the making of films or the use of video tape, of their broadcasts for the purpose of communication to the public of television broadcasts ofthe same; and

211.3 . The use ofsuch records for fresh transmissions or for fresh recording.

s Sec. 202.8, IP Code. 6 Sec. 202.7, W Code . 7 Understand ing Copyright and Related Right , by WIPO is licensed under CC BY 3.0 IGO, available at htlps :llwww.wipo.int/edocs/pubdocs/en/wipo pub 909 20 16.pdf< last accessed on 1212212020>

8 '.

The Complainant claims that the Respondent has violated its rights when the latter allegedly broadcasted a play-by-play descriptions of the boxing bout between Pacquiao and Mosley on May 8, 2011 Philippine time. The Respondent conducted a "blow by blow" coverage of the Pacquiao- Mosley Boxing Fight over its FM radio station STAR FM, of which the Complainant claims to have acquired the exclusive right to do so by virtue of a Radio Broadcasting Agreement it entered into with Solar Entertainment Corporation ("Solar"). Solar on the other hand, derives its rights from a License Agreement entered into with Emmanuel Pacquiao and MP Promotions, Inc., which Scope of License is as follows:

I. SCOPE OF LICENSE

For the duration of the Term of this Agreement, and subject to the terms and conditions hereof, LICENSOR hereb y grants to LICENSEE on an exclusive basis all rights to broadcast, play, run and televise the Future Bouts , either live and replays thereof , as well as to record, reproduce and distribute copies of the same, through any mean s or media. Including but not limited to the following:

Terrestrial broadcast (Free Television) Basic cable and satellite television Pay television Pay Per View Closed Circuit Television (Theatrical, Commercial Account and Public Venues) DVD and VCD All Digital Media Rights (Broadcast, DSL, IPTV, Mobile Telephone, 3G, WebTV, video streaming)

The rights granted above shall hereinafter be referred to as the "Rights"

For the avoidance ofdoubt, LICENSEE may exercise the Rights within the Philippines. Rights granted by LICENSOR shall include the technical delivery of an International Broadcast Standard Live Feed ("IBSLF") to LICENSEES Broadcast Center in Ant ipolo through satellite or fiber.

Complainant's first witness, Mr. Roubbin James Aban, Executive Producer for DZBB, which is owned and operated by the Complainant, testified that Complainant obtained the exclusive radio broadcasting rights over the Pacquiao-Mosley Fight held on May 8, 2011 from Solar Entertainment Corp. and that in order to ensure exclusivity of the coverage, his team monitored the programming of their competitors, which included DZMM, DZRH, DWIZ and Star FM during the date and time of the fight. When monitoring Star FM during the fight, he heard that the anchors were conversing with their sports correspondent, Mr. Monico "Niyoks" Fuentebella who was inside the MGM stadium. According to Mr. Aban, Mr. Fuentebella described the atmosphere in the stadium, let the listeners of the station hear the renditions of the nationals anthems, gave a rundown of local and international celebrities and local politicians watching the fight, gave a blow-by-blow account of the entry of Pacquiao and Mosley to the ring and the detailed description of the punches,

9 . ~ jabs, blows made by the boxers. Mr. Aban also testified that he and his teammate called Star FM several times to stop the blow-by-blow coverage until the end of the fight and the announcement of the winner, but their demands were unheeded.

Aside from his testimony, Mr. Aban identified two (2) compact discs containing the recording of Star FM's coverage of the Pacquiao-Mosley fight, the written transcript of said recordings, and a compact disc containing DZBB's recording of the fight as well as the written transcript of the recording.

Complainant's second witness, Luz Annalee Ong -Escudero, First Vice President for Regional TV of GMA Network testified that she was the one who negotiated the airing of the Pacquiao-Mosley Fight on May 8, 2011. She testified that GMA entered into Blocktime Agreement with Solar Entertainment for the TV airtime of the Pacquiao-Mosley fight and a Radio Broadcast License Agreement whereby Solar assigned exclusive radio broadcasting rights to GMA Network. She also testified that in order to give warning to other radio stations of their exclusive radio broadcast rights, GMA sent letters to other radio broadcasting stations including Respondent and also monitored the broadcasting of radio stations. Through their monitoring, they found out that Respondent through their Star FM station made a blow-by-blow account of the Pacquiao Mosley fight in violation of GMA's exclusive radio broadcasting fight.

On cross examination, the witness testified as follows:

ATTY. DISIERTO: May I just invite your attention to page 5, paragraph 17 where you were asked and I quote " what happened to the exclusive broadcasting rights of GMA "? Then, you answered, " it was violated by PBS, Sir". My question to you Madam Witness is, how it was violated by PBS?

MS. WITNESS: We paid for exclusive broadcast rights from GMA worth 2 Million. And then, what happened was, our radio station was supposed to broadcast the fight exclusively live and we paid for those rights to Solar Corporation who got those rights from Manny Pacquiao himself, who got those right from Top Rank. So, what happened was, afterwards, we found out that PBS broadcast also live blow by blow the fight. So,...

ATTY. DISIERTO: In other words , Madam Witness, PBS was conducting, almost performing annotation of the fight, of the Pacquiao Mosley fight.

MS. WITNESS: We call it blow by blow reportage ofthe fight.

ATTY. DISIERTO: Yes.

MS. WITNESS: They started from the description of the venue, kung sino iyong kumanta ng National Anthem,...

ATTY. CANTARA: Your honor may I just request that in the event that witness answer in vernacular that will be recorded as it is your honor.

MS. WITNESS: I'm sorry.

ATTY. DISIERTO: Or, maybe ifshe canjust answer in English .

10 . ~ MS. WITNESS: Okay, I'll try to translate it in English. So, we call it blow by blow reportage which means that , we started up with the description of the venue, who was singing the National Anthem until a blow by blow round by round description. Just to paraphrase, it is exactly the fight because I don't remember word for word what happen but it sort of like description, "okay, so, right conscious, no, it hit the gym", so, it's like a verbal description of what is going on in the actual fight.

ATTY. DISIERTO: In that sense that you describe the blow by blow reportage that is what you are accusing the Respondent of committing....

MS. WITNESS: Yes, because that is the exclusive right we bought. That is the right that we have the right to and that is what we broadcast also. So, it was an exact replica.

ATTY. DISIERTO: Let's go there, Madam Witness, what exactly it is that you did bought. Correct me, if I'm wrong, based on your Judicial Affidavit there is a License Agreement between Manny Pacquiao and its promotion at MP Production on the one hand and Solar Corporation on the other, correct?

MS. WITNESS: Correct.

ATTY. DISIERTO: And then , that contract, that contract, that agreement, it was extended by letter by Manny Pacquiao and also by Solar, correct?

MS. WITNESS: Yes.

ATTY. DISIERTO: Subsequent thereto, there is a radio broadcast License Agreement entered into between Solar Entertainment Corporation and GMA Network, Inc.

MS. WITNESS: Yes.

ATTY. DISIERTO : Now, will you agree with me, Madam Witness that Solar Entertainment Corporation can only assign rights to GMA Network, Inc., can I just rephrase the question, your honor. Will you agree with me Madam Witness that the only rights that could have been assigned by Solar Entertainment Corporation to GMA Network are those rights which it acquired from Manny Pacquiao and MP promotions pursuant to that License Agreement dated May 7,2007.

ATTY. CANTARA: Your honor, objection. I believe the question is a legal one which the witness is not competent to answer.

ATTY. DISIERTO: Only, if witness knows.

HEARlNG OFFICER: Witness may answer.

MS. WITNESS: I don't really know what constitutes.i.,

ATTY. DISIERTO: That's fine, Ms. Witness. May I draw your attention to the License Agreement dated May 7, 2007, that is between Emmanuel Pacquiao and MP Promotions and Solar Entertainment Corporation. That is attached as Exhibit "H " to your Judicial Affidavit. Now, can you kindly go over that License Agreement and Madam Witness and tell this representation where in this License Agreement did Mr. Pacquiao or MP Promotions Inc., supposedly sold exclusive rights to perform a reportage of that Pacquiao Mosley fight. Is that here?

MS. WITNESS: Yes.

ATTY. DISIERTO: Where?

MS. WITNESS: "LICENSOR hereby grants to LICENSEE on an exclusive basis all rights to broadcast, play, run and televise the future bouts , either live and replays"..You know , I'm not a

11 . ~ lawyer, however, I have been practicing broadcaster for the past 20 years, broadcast includes radio , in fact, that is the bases of television broadcast. Section of broadcasting started with radio broadcast and then it includes television broadcast. So, rights to broadcast, play, run and televise the future bouts either live and replays through any means or media, so, media includes radio , and it says , "including but not limited to" . That's why, I particularly bothered because we paid for those rights and we will doing it and if somebody else was doing it, they will pay for it but we did.

ATTY. DISIERTO: But that is your interpretation Madam Witness of what is included within broadcast rights, that is your interpretation.

MS. WITNESS: Well, that it says in the scope of the license. That, the LICESOR is hereby grants to the LICENSEE on an exclusive basis all rights to broadcast, play, run and televise the future bouts , either live and replays thereof, as well as to record, reproduce and distribute copies of the same, through any means or media, media is television and radio including but not limited to the following. So, broadcasting by virtue of it, you know, description, include radio, tv, internet, now, it includes digital. We're particularly concern about radio because that's what we bought in GMA .

ATTY. DISIERTO: There's an enumeration here in the License Agreement under item no. I, scope of license, terrestrial broadcast, basic cable and satellite television, pay television, pay per view, closed circuit television, OVO and VCO, all digital media rights (broadband, OSL, IPTV, mobile telephone, 3G, Web TV, video streaming). The rights granted above shall hereinafter be referred to as the "Rights". When that paragraph refers to rights it referred to the preceding enumeration.

MS. WITNESS: Right. I'm sorry, Sir, I don't mean to be an argumentative but however, that is precluded or preceded by the sentence which says, through any means of media including but not limited to the following. You see, exclusive basis all rights to broadcast, play, run and televise, that's what I read a while ago which precede the enumeration you have said which is why we and broadcasting, radio being part of broadcasting, in fact, it is the mother of television broadcasting because audio were first than video, radio is included in the broadcast and I think it is included in the scope of the license as enumerated in this scope of license because it says, LICESOR is hereby grants to the LICENSEE on an exclusive basis all rights to broadcast, play , run and televise through any means or media, including but not limited to the following.

ATTY. DISIERTO: But you will agree Madam Witness that the words, blow by blow reportage, those words do not appear in this License Agreement, correct?

MS. WITNESS: Well, that is a description of what happens in radio broadcast.

ATTY. DISIERTO: No, Madam Witness , you are very intelligent, it is yes or no, the right to do a reportage is that what you called or blow by blow account?

MS. WITNESS: Yes.

ATTY. DISIERTO: That's right is not explicitly or categorically spelled out in the enumeration or anywhere for that matter under the scope of license in this License of Agreement. Do you understand the question, Madam Witness?

MS. WITNESS: Yes. Well, you know, reportage as a word is not mentioned here.

ATTY. OISIERTO: That's fine, Ms. Witness.

MS. WITNESS: That's what we do, on radio and or tv...

ATTY. OISIERTO: Anyway, I'll move to the another point. In paragraph 13 of your Judicial Affidavit, you were asked "how much did complainant pay, if any, for the exclusive radio broadcasting rights to the Mosley Fight?". And you answered and I quoting "As reflected in

12 the Radio Broadcast License Agreement, GMA paid Solar the amount of P2 Million as consideration to the grant ofsaid rights."

MS. WITNESS: Yes .

ATTY. DISIERTO: Did you personally witness the payment of a 2 Million?

MS. WITNESS: Well, I was witnessed to the making and the signing of the contract.

ATTY. DISIERTO: The payment, were you a witness to the payment of2 Million?

MS. WITNESS: Well, our Finance Department pays Solar Corporation, however, we would be able to get a copy ofthe check draft or the receiving copy but I personally...

ATTY. DISIERTO: You personally did not receive or should I say, you did not personally witnessed the payment of the 2 Million whether by check or in cash to Solar Entertainment Corporation.

MS. WITNESS: No . I didn't personally witnessed but I can get a copy to the Finance record, which shows the receiving payment, probably even slip of deposit, if deposited because usually it is not pay outright, you know.

ATTY. DISIERTO: But do you know for a fact if it deposited or was it given in cash?

MS. WITNESS: Well, I know for sure that... being paid by a cash is small. Usually, how we pay it, we prepare the money, we deposit the money, then, there a collector who comes to Finance Department to picks of the check and then it is receive.

ATTY . DISIERTO: And I would assume there is an Official Receipt.

MS. WITNESS: Yes, there will be. We will be able to get that.

ATTY. DISIERTO: You mention a while ago Madam Witness that the rights were acquired, broadcast rights were acquired by GMA from Solar and from Solar to Manny Pacquiao and MP Promotions, then , from Top Rank.

MS. WITNESS: Yes.

ATTY. DISIERTO: In other words, the origin ofthe rights is Top Rank.

MS. WITNESS: Which is the boxing promoter of Manny Paccquiao. He is the one who organizes the fight, Bob Arum.

ATTY . DISIERTO: Bob Arum.

On Re-Direct, the witness testified:

ATTY. CANTARA: A few questions, your honor. Madam Witness, earlier you were asked whether the phrase blow by blow reportage appears in paragraph I in the License Agreement to which your answer was cut off.

MS. WITNESS: Yes.

ATTY. CANTARA: Can you please clarify your answer regarding said question.

MS. WITNESS: Well, radio is a media use for broadcast wherein it is only audio . You only hear the voice of the reporter and the anchor. So, the way to report on radio is to reported via description of what is actually happening and the one way to describe that is to say, that it is by blow by blow reportage. That means , you are describing what is happening as it happens per detail. So, if I were to report about what is happening here, in this court room now, then, I

13 would start by saying, "andito tayo sa IPO office, mayroon tayong hearing ngaun at ang Judge po natin ay nandito at tinitingnan nya ang kopya ng file, affidavit, and then, sasabihin ko ano pangalan nya . So, it is a verbal description of anything and everything that happens at a certain event. So, a blow by blow reportage of a boxing match, iyon yun , you describe what is happening in the place actually so that the people who are listening at home via their radio set, they close their eyes and they can imagine what is actually happening live. That is why you have to bring to your radio aud ience because that is what they will listen into.

For its part, the Respondent presented two witnesses. The first one, Elmar B. Acol, News Director and one of the anchors of Bombo Radyo Philippines, testified that during the Pacquiao-Mosley fight, he acted as a radio anchor for Star FM. According to him, he, the Respondent and Star FM did not broadcast the coverage of other radio stations of Pacquioa-Mosley fight. He also testified that Bombo Radyo had the former Olympic Committee Chairman who at that time was in MGM Grand Arena in Las Vegas, Nevada, U.S.A., as correspondent. The latter reported live on what transpired during the boxing event via phone patch to the Makati Head Office of Bombo Radyo which was also aired over Star FM. During cross-examination, Mr. Acol testified:

ATTY. CANTARA: Okay. Mr. Witness can you please tell us who conceptualized the manner by which PBS covered the Pacquiao-Mosley Fight?

MR. WITNESS: Like the other negotiation, news, the productions, the technical, my style and the news as the tv work ....

ATTY. CANTARA: Whose idea was it in particular to let Mr. Mon ico Puetevella report at the MGM Grand Arena?

MR. WITNESS: Actually, it was the Chairman of implementing committee of the Mayor now of Bacolod City, he volunteer, he calls us up, we talk him, he volunteered for us, he calls us up and tell that the fight is at MGM Grand Arena in Las Vegas , he was him who broadcast that.

ATTY. CANTARA: When you say he volunteered he said he was going to see the fight at MGM Grand Arena and volunteer his services to report on the fight.

MR. WITNESS: Yes, as a sportsman, he was compadre of Manny Pacquiao, he was close to Manny Pacquiao and at the same time he was in boxing din kasi, so, he is sporty, he volunteered.

ATTY. CANTARA: Okay. Aside from that Mr. Witness, does Mr. Puentevella have any other connections with PBS?

MR. WITNESS: As far as I know.

ATTY. CANTARA: Okay. And it is correct for me to say that PBS did not enter into any discussions or any negotiations with TOP Rank Solar or Manny Pacquiao to cover the Pacquiao Mosley Fight.

MR. WITNESS: As far as I know but my level is between...

ATTY. CANTARA: As far as you know Mr. Witness. As far as you know, you do not know if PBS entered into any discussions concerning coverage with TOPRANK, solar or Mr. Manny Pacquaio.

MR. WITNESS: I don't know if there is any negotiation or whatever

14 ATTY. CANTARA: You don't know if there is any contract.

MR. WITNESS: Yes.

ATTY. CANTARA: So, as far as your level is concern, PBS was not given any authority by TOPRANK, Solar and/or Manny Pacquaio to broadcast or cover the Pacquiao Mosley Fight.

MR. WITNESS: I cannot really fully answer that...

ATTY. CANTARA: It is answerable by yes or no Mr. Witness.

MR. WITNESS: No, I didn't know.

ATTY. CANTARA: And from your level Mr. Witness it was Mr. Puentevella given authority by TopRank, Solar and or Manny Pacquaio to cover the Pacquiao Mosley Fight when he was at the MGM Grand Arena?

MR. WITNESS: I do not know .

ATTY. CANTARA: Mr. Witness, in your Judicial Affidavit you stated that Mr. Puentevella reported live on what transpired during the boxing event, do you mean to say that Mr. Puentevella was describing what happen inside the ring during the fight.

MR. WITNESS: Yes, he was giving updates.

ATTY. CANTARA: And it was also PBS which provided access to Mr. Puentevella to report on the fight, correct?

MR. WITNESS: What do you mean ?

ATTY. CANTARA: It provided a phone patch to Mr. Puentevella.

MR. WITNESS: A sort of that because he was the one called up eh.

ATTY. CANTARA: He called you up from the MGM Arena.

MR. WITNESS: Not direct from me but we have tv, productions, Chairman is on the line, we can interview him to give info .

ATTY. CANTARA: Okay . How long this interview or report made by Mr. Puentevella?

MR. WITNESS: I think only during the Pacquiao.

ATTY. CANTARA: Only during the whole fight.

MR. WITNESS: Yes but before that an updates is 7:00, usually kasi mayroon kami niyan, we have regular programming newscast, so, we updates 7:00, then, 8:00 .

ATTY. CANTARA: Okay . That will be all for my cross-examination of the witness your honor.

The Respondent's second witness, Monico Puentevella, who was then the Mayor of Bacolod City, testified that on May 7, 2011 at around 8 p.m., he was in MGM Grand Arena, Las Vegas, Nevada with the entourage of Manny Pacquiao. the Pacquiao-Mosley fight. According to him, while in the locker room and until the judges' decision was announced, he was talking to Elmar Acol of Bombo Radyo describing the atmosphere at the time, the people in attendance, the excitement of the people including the mood of Pacquio. During the fight, he also

15 .fY described what transpired during each round including the movements of Pacquiao and Mosley, the punches they threw, together with his comments and observations of the performance of the boxers. During cross-examination, Puentevella testified as follows:

ATTY. CANTARA: Good afternoon Mr. Fuentabella.

MR. WITNESS: Magandang hapon po. May I just request Attorney, lakasan mo lang ha.

ATTY. CANTARA: I will do that. Mr. Witness, you mention in your Judicial Affidavit that you were at the locker room at the time the Pacquiao Mosley fight. Did you also enter the Arena when the fighters particularly Manny Pacquiao went inside the Arena?

MR. WITNESS: Nanood po ako ng laban.

ATTY. CANTARA: And where were you seated while you were describing what happening inside the ring ?

MR. WITNESS: I was moving around, Attorney, moving around kung saan saan.

ATTY. CANTARA: You also said that you talked to Mr. Elmar Acol of Bombo Radyo and describe to him the boxing match, am I correct?

MR. WITNESS: Opo kasi I was the Cha irman of Philippine Olympic Committee and kumpare ko din po si Mr. Pacquiao, I am one of the ninongs of his daughter Princess, so, lahat po tumatawag sa akin.

ATTY. CANTARA: If I may just clarify, at the time of the fight of May 27, 20 II you still the Chairman ofthe Philippine Olympic?

MR. WITNESS: Yes, po. I was out when I became Mayor of Bacolod.

ATTY. CANTARA: Who is this Mr. Elmar Acol that you mentioned in your Judicial Affidavit?

MR. WITNESS: He is the broadcaster ofBombo.

ATTY. CANTARA: And do you personally know Mr. Acol Mr. Witness?

MR. WITNESS: Honestly po I don't because there are several people calling me.

ATTY. CANTARA: You have never met Mr. Acol personally?

MR. WITNESS: Having been chairman of Olympic Committee, I guess I have met a lot of time.

ATTY. CANTARA: And you do not remember actually meeting him, the circumstances of your meeting with Mr. Acol ?

MR. WITNESS: I'm not too sure but I guess I have met him because I have been more than 6 years Commissioner of Philippine Olympic Commision during the time of President Erap nireappoint niya ako and I was Commissioner also under President Ramos noon una, he first appointed me and then, sumunod si President Erap ako lang ang isang naappoint niya .

ATTY. CANTARA:\ Mr. Witness was there a prior arrangement between you and Bombo Radyo or Mr. Acol for you to cover what was happening to the boxing match?

MR. WITNESS: Wala naman kasi every radio station naman tries to call me in every event , lahat naman Olympics even sa Seagames.

16 . ~ ATTY. CANTARA: Mr. Witness was it Mr. Acol called you up during the said boxing match?

MR. WITNESS: I'm not too sure because ang alam ko lang, palagay ko siya, usually ang darning tumatawag.

ATTY. CANTARA: So, it was Bombo Radyo who called you up and it was not you who called them up.

MR. WITNESS: Yes .

ATTY. CANTARA: And aside from Bombo Radyo which other radio stations called you up, if any?

MR. WITNESS: Before that, I think RMM also cal1ed me up. RMM, to find out what is the latest kasi parang I feel they presume my duty kasi ang Chairman of the Philippine Olympic Committee I am also bound to look for the country lalo na ang television is very delayed eh.

ATTY. CANTARA: But you did not cover the match for RMM, am I correct Mr. Witness?

MR. WITNESS: For RMM?

ATTY. CANTARA: You said that...

MR. WITNESS: When they called to update, sometimes after the fight they call me for interview.

ATTY. CANTARA: So, Mr. Witness when Mr. AcoJ called you up was there an opportunity for you to put down the phone after Mr. Acol called you up?

MR. WITNESS: Diretso diretso naman eh.

ATTY. CANTARA: Okay. So, from the time Mr. Acol called you up you talked to him during the link of the said boxing match?

MR. WITNESS: I'm not so sure because there was a time that I was rested . I usually drink in between the fight, so, I cannot, wel1, whenever I'm on I'm on I'm so excited because your honor one time nasabi ko ang fight kasi is so many hours delayed, tapos na ang away pambansang awit pa lang ang t.v. sabi ko, I was also chairman of sports committee of congress people of this country would like to hear the live result ano ba nanalo ba, natalo ba, sinong nanalo kasi kung hintayin mo ang telebisyon tapos na ang away pambansang awit pa lang, so, I feel that anybody calls me I have a duty to report.

ATTY. CANTARA: So, Mr. Witness, just to clarify, it was just Bombo Radyo through Mr. Acol and RMM called you up?

MR. WITNESS: Yes , I'm waiting for anyone naman , before I leave Bacolod they call me, baka puwede kang magreport, so, it's my duty.

ATTY. CANTARA: Aside from rest period that you mentioned is it fair to assume that you were in conversation with Mr. Acol during the length of the boxing match?

MR. WITNESS: Hindi naman length basta during match I was able to. I guess some other people call me even after the fight from other station.

ATTY. CANTARA: And during your conversation with Mr. Acol you describe what was happening inside the ring between Mr. Pacquio and Mosley, correct?

17 . ~ MR. WITNESS: Well, I guess, ang nangyayari people would like to listen, anong nangyayari, may natumba ba, so, it is not only Mr. Acol , it's everybody also, I cannot remember, even up to now if there is a fight on this stage people call me.

ATTY. CANTARA: So, your answer to my question is a yes, am I correct?

MR. WITNESS: And your question is?

ATTY. CANTARA: That you describe to Mr. Acol what was happening inside the ring?

MR. WITNESS: Not only that fight.

ATTY. CANTARA: Mr. Witness, did you ever inform Top Rank , the promoter of the said boxing match that you were going to cover the scene for Bombo Radyo?

MR. WITNESS: Never.

ATTY. CANTARA: You never sought permission.

MR. WITNESS: Never.

ATTY. CANTARA: Did you also apprise Mr. Manny Pacquiao that you were going to describe what was happening inside the ring?

MR. WITNESS: Hindi naman. Are you representing GMA?

ATTY. CANTARA: Yes.

MR. WITNESS: Because before that it was an ABS CBN before, Manny kasi was also a Bombo truster, to be honest with you . He loves to talk on Bombo even after the fight because, well, kailangan niya din iyon para sa kanyang, naging congressman siya, tatakbong senador, not only Bombo, other station also, hindi lamang Bombo because I was chairman of sports committee sa congress, I was chairman for 6 years but every time may fight siya he gives me ticket kasi kumpare niya ako, honestly, I am one ofhis adviser.

ATTY. CANTARA: If! may Mr. Witness, am I correct in saying that you did not acquire prior consent from Top Rank for Mr. Manny Pacquiao describing...

MR. WITNESS: He knows, Manny Pacquiao.

ATTY. CANTARA: But with regard to Top Rank, he did not acquire?

MR. WITNESS: I'm not sure, I don 't know, matagal na kasi ito, anong taon ba ito? Sorry, Attorney, I want to know, anong year ito?

ATTY. CANTARA: 201 I.

MR. WITNESS: Okay.

ATTY. CANTARA: Mr. Witness, can you tell us who pay for your fare and expenses during the time that you were in Las Vegas?

MR . WITNESS: I always pay my personal.

ATTY. CANTARA: Were you able paid by bombo radyo when you cover the boxing match.

MR. WITNESS: Wala naman.

ATTY. CANTARA: Did you have any arrangement with Bombo Radyo concerning your coverage with the boxing match?

18 .r/ MR. WITNESS: Wala naman because all stations call me naman. Like for example, tomorrow may laro ang Askals, all stations call me also and when I'm on fight I try to describe, I'm a Mayor, nasanay na ang tao sa akin .

ATTY. CANTARA: Okay. Mr. Witness are you aware that your description of the said boxing match with your conversation with Mr. Acol was being broadcast by Bombo Radyo?

MR. WITNESS: Well, kung interviews, I guess. Everybody calls me because they want to get the first hand information even ABS CBN before, hindi pa kayo ang humawak, tinanong ako, sabi ko, kasi nakakaawa ang Pilipino naglalaban na, tapos na ang laban tsaka pa lang malaman, so, when they call I tell what is happening.

ATTY. CANTARA: Mr. Witness are you connected in any capacity to Bombo Radyo?

MR. WITNESS: Wala.

ATTY. CANTARA: Mr. Witness are you aware of the notice sent by Solar Sports and GMA to Bombo Radyo apprising Bombo Radyo of their exclusive rights to cover the boxing match ?

MR. WITNESS: I don't know.

ATTY. CANTARA: Are you aware that the said boxing match will be covered by the Solar Sports...

MR. WITNESS: Attorney, I just want to clear, before you came in to this fight it was under by ABS CBN , all radio stations also called me and there was no issue, walang problema. Your honor, Attorney Gozon calls me, basta nagulat ako inakyatan ako ng ganitong kaso.

ATTY. CANTARA: If I may just correct your understanding, we filed a case against Bombo Radyo and not you Mr. Witness.

MR. WITNESS: Ah, .but, nagulat din ako, nagulat pa din ako.

ATTY. CANTARA: And Mr. Witness are you aware that the boxing match will be covered by Solar Sports and/or GMA?

MR. WITNESS: Solar Sports, yes, because before that it was ABS.

ATTY. CANTARA: But are you aware that GMA will be airing radio coverage of the said boxing match?

MR. WITNESS: I'm not sure, alam ko Solar, Solar ang humahawak nito, before it was ABS then, kayo na and I don't even know ngayon kung sino humahawak eh.

ATTY. CANTARA: So, Mr. Witness, if I may, are you aware that aside from Bombo Radyo other radio stations such GMA will be airing a live broadcast of the said boxing match?

MR. WITNESS: Marami radio station ang nag cover.

ATTY. CANTARA: So, it's not only Bombo Radyo who will be covering the said boxing match, am I correct?

MR. WITNESS: Sa palagay ko there were other radio station.

ATTY. CANTARA: In that case Mr. Witness, is it correct for me to say that the Filipino public will have access to live coverage of the said boxing match since radio station such as GMA will be covering the same?

19 MR. WITNESS: Well, alam ko na mayroon radio coverage but I know other stat ions covering this one because they were also calling me.

ATTY. ALCANTARA: And because this coverage am I correct in saying that the Filipino people has access and are able to listen and monitor what was happening during the fight of Mr. Manny Pacquiao.

MR. WITNESS: Sa T.V. masyadong delayed eh.

ATTY. CANTARA: I'm referring to radio. Since you broadcast of the said boxing match, was it aired on radio, am I correct?

MR. WITNESS: It on the match, hindi naman buo eh.

ATTY. CANTARA: That will be all for the witness your honor. Thank you.

The question is whether the coverage made by the Respondent is a rebroadcast of the Complainant's broadcast? "Rebroadcasting" as defined in Article 3(g) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, also known as the 1961 Rome Convention, of which the Philippines is a signatory, is "the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization."8

A careful perusal of the evidence shows that the Respondent did not do a rebroadcasting of the Complainant's blow-by-blow account or radio coverage of the Pacquiao-Mosley fight. There were recordings of the respective coverage made by the parties of the fight, contained in compact discs.? The transcription of the recordings reveal that the Respondent's coverage of the fight was entirely different and distinct from the Complainant's.t? The Complainant coverage was done by its anchors Orly Trinidad and Denver Trinidad, through a blow-by-blow or play-by-play description of the twelve (12) boxing rounds between Pacquiao and Mosley. In contrast, the Respondent's "coverage" of the fight was in the form of an interview with Puentevella who was at the MGM Grand Arena watching the fight, and making his own annotations and observations of the fight. The Respondent was not rebroadcasting as defined above, the Complainant's broadcasting of the fight. If at all, what the Respondent did was a parallel broadcast of the fight, an act which is not in contravention of Sec. 211.1 of the IP Code. There was no evidence also that the Respondent made a recording of the Complainant's broadcast or coverage of the fight, and/or used such recording.

Considering that the Respondent did not commit a violation of Section 211 of the IP Code, there is no basis to award the damages prayed for by Complainant. With the Respondent's failure to present evidence to prove its entitlement to an award of attorney's fees as stated in its compulsory counterclaim, there is also no reason or basis to award the same.

6 ABS-CBNBroadcasting Corporation v, Philippine Multi-Media Inc., C.R. No. 175769-70, January 19, 2009 9 See Exhibits "0 -1" and "0-2" 10 See Exhibits "C " and "F" of Complainant

20 WHEREFORE, premises considered, the instant Complaint IS hereby DISMISSED for lack of merit.

SO ORDERED. Taguig City, 1)-5--MAR-2021

Atty. N~IELS. AREVALO Director ~:reau of Legal Affairs~