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 2 .;p/ r. '. 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.