Professional Documents
Culture Documents
ABS-CBN Corporation vs. Gozon, 753 SCRA 1, G.R. No. 195956 March 11, 2015
ABS-CBN Corporation vs. Gozon, 753 SCRA 1, G.R. No. 195956 March 11, 2015
Verily, as aptly opined by Secretary Gonzalez in his earlier the suspension of the accused’s arraignment in certain
Resolution, the act of petitioners in airing the five (5) second circumstances only:
footage was undeniably attended by good faith and it thus serves
to exculpate them from criminal liability under the Code. While SEC. 11. Suspension of arraignment.–Upon motion by the proper
the Intellectual Property Code is a special law, and thus generally party, the arraignment shall be suspended in the following cases:
categorized as malum prohibitum, it bears to stress that the
provisions of the Code itself do not ipso facto penalize a person or
entity for copyright infringement by the mere fact that one had (a) The accused appears to be suffering from an
used a copyrighted work or material. unsound mental condition which effectively renders him
unable to fully understand the charge against him and to
plead intelligently thereto. In such case, the court shall
Certainly so, in the exercise of one’s moral and economic or order his mental examination and, if necessary, his
copyrights, the very provisions of Part IV of the Intellectual confinement for such purpose;
Property Code provide for the scope and limitations on copyright
protection under Section 184 and in fact permit fair use of
copyrighted work under Section 185. With the aforesaid statutory (b) There exists a prejudicial question; and
limitations on one’s economic and copyrights and the allowable
instances where the other persons can legally use a copyrighted (c) A petition for review of the resolution of the
work, criminal culpability clearly attaches only when the prosecutor is pending at either the Department of
infringement had been knowingly and intentionally Justice, or the Office of the President; provided, that the
committed.35 (Emphasis supplied) period of suspension shall not exceed sixty (60) days
counted from the filing of the petition with the
The dispositive portion of the Decision reads: reviewing office. (12a) (Emphasis supplied)
WHEREFORE, the foregoing considered, the instant petition is In Samson v. Daway,39 this court acknowledged the applicability of
hereby GRANTED and the assailed Resolution dated 29 June 2010 Rule 116, Section (c) in a criminal prosecution for infringement
REVERSED and SET ASIDE. Accordingly, the earlier Resolution under the Intellectual Property Code. However, this court
dated 1 August 2005, which ordered the withdrawal of the emphasized the limits of the order of deferment under the Rule:
Information filed, if any, against the petitioners for violation of
Sections 177 and 211 of the Intellectual Property Code, is hereby While the pendency of a petition for review is a ground for
REINSTATED. No costs. suspension of the arraignment, the . . . provision limits the
deferment of the arraignment to a period of 60 days reckoned
SO ORDERED.36 (Emphasis in the original) from the filing of the petition with the reviewing office. It follows,
therefore, that after the expiration of said period, the trial court is
bound to arraign the accused or to deny the motion to defer
ABS-CBN’s Motion for Reconsideration was denied. 37 It then filed arraignment.40
its Petition for Review before this court assailing the Decision and
Resolution of the Court of Appeals.38
We clarify that the suspension of the arraignment should always
be within the limits allowed by law. In Crespo v. Judge
The issues for this court’s consideration are: Mogul,41 this court outlined the effects of filing an information
before the trial court, which includes initiating a criminal action
First, whether Secretary Agra committed errors of jurisdiction in and giving this court "authority to hear and determine the case": 42
the Resolution dated June 29, 2010 and, therefore, whether a
petition for certiorari was the proper remedy in assailing that The preliminary investigation conducted by the fiscal for the
Resolution; purpose of determining whether a prima facie case exists
warranting the prosecution of the accused is terminated upon the
Second, whether news footage is copyrightable under the law; filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal
Third, whether there was fair use of the broadcast material; action against the accused in Court. Should the fiscal find it proper
to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such or appeal from the action of the fiscal, when the complaint or
reinvestigation the finding and recommendations of the fiscal information has already been filed in the Court. The matter should
should be submitted to the Court for appropriate action. While it be left entirely for the determination of the Court. 45
is true that the fiscal has the quasi judicial discretion to determine
whether or not a criminal case should be filed in court or not, The trial court should have proceeded with respondents Dela
once the case had already been brought to Court whatever Peña-Reyes and Manalastas’ arraignment after the 60-day period
disposition the fiscal may feel should be proper in the case from the filing of the Petition for Review before the Department
thereafter should be addressed for the consideration of the Court, of Justice on March 8, 2005. It was only on September 13, 2010
the only qualification is that the action of the Court must not that the temporary restraining order was issued by the Court of
impair the substantial rights of the accused or the right of the Appeals. The trial court erred when it did not act on the criminal
People to due process of law. case during the interim period. It had full control and direction of
the case. As Judge Mogul reasoned in denying the motion to
Whether the accused had been arraigned or not and whether it dismiss in Crespo, failure to proceed with the arraignment
was due to a reinvestigation by the fiscal or a review by the "disregards the requirements of due process [and] erodes the
Secretary of Justice whereby a motion to dismiss was submitted to Court’s independence and integrity."46
the Court, the Court in the exercise of its discretion may grant the
motion or deny it and require that the trial on the merits proceed II
for the proper determination of the case.
According to ABS-CBN, the Court of Appeals erred in finding that:
However, one may ask, if the trial court refuses to grant the a motion for reconsideration was not necessary before a petition
motion to dismiss filed by the fiscal upon the directive of the for certiorari could be filed; the Department of Justice Secretary
Secretary of Justice will there not be a vacuum in the prosecution? committed errors of jurisdiction since the Agra Resolution was
A state prosecutor to handle the case cannot possibly be issued within its authority and in accordance with settled laws and
designated by the Secretary of Justice who does not believe that jurisprudence; and respondents were not liable for copyright
there is a basis for prosecution nor can the fiscal be expected to infringement.
handle the prosecution of the case thereby defying the superior
order of the Secretary of Justice. The answer is simple. The role of
In its assailed Decision, the Court of Appeals found that
the fiscal or prosecutor as We all know is to see that justice is
respondents committed a procedural error when they failed to file
done and not necessarily to secure the conviction of the person
a motion for reconsideration before filing the Petition for
accused before the Courts. Thus, in spite of his opinion to the
Certiorari. However, the Court of Appeals held that a motion for
contrary, it is the duty of the fiscal to proceed with the
reconsideration was unnecessary since the Agra Resolution was a
presentation of evidence of the prosecution to the Court to enable
patent nullity and it would have been useless under the
the Court to arrive at its own independent judgment as to
circumstances: Given that a reading of the assailed Resolution and
whether the accused should be convicted or acquitted. The fiscal
the instant records readily reveals errors of jurisdiction on the part
should not shirk from the responsibility of appearing for the
of respondent Secretary, direct judicial recourse is warranted
People of the Philippines even under such circumstances much
under the circumstances. Aside from the fact that said Resolution
less should he abandon the prosecution of the case leaving it to
is a patent nullity having been issued in grave abuse of discretion
the hands of a private prosecutor for then the entire proceedings
amounting to lack or excess of jurisdiction, the filing of a motion
will be null and void. The least that the fiscal should do is to
for reconsideration is evidently useless on account of the fact that
continue to appear for the prosecution although he may turn over
the issues and arguments before this Court have already been
the presentation of the evidence to the private prosecutor but still
duly raised and accordingly delved into by respondent Secretary in
under his direction and control.
his disposition of the petition a quo.47 (Emphasis in the original)
The Agra Resolution was the result of respondents’ Motion for It is only where the decision of the Justice Secretary is tainted with
Reconsideration assailing the Gonzalez Resolution. To file a grave abuse of discretion amounting to lack or excess of
motion for reconsideration of the Agra Resolution would be jurisdiction that the Court of Appeals may take cognizance of the
superfluous. Respondents were, therefore, correct in filing the case in a petition for certiorari under Rule 65 of the Revised Rules
Petition for Certiorari of the Agra Resolution before the Court of of Civil Procedure. The Court of Appeals decision may then be
Appeals. appealed to this Court by way of a petition for review on
certiorari.65 (Emphasis supplied, citations omitted)
III
In this case, it must be shown that Secretary Agra exceeded his
authority when he reversed the findings of Secretary Gonzalez.
This court must determine whether there is probable cause to file
an information for copyright infringement under the Intellectual "The substance of all the definitions" of probable cause "is a
Property Code. reasonable ground for belief of guilt." McCarthy v. De Armit, 99
Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U.
IV S. at 161. And this "means less than evidence which would justify
condemnation" or conviction, as Marshall, C. J., said for the Court
more than a century ago in Locke v. United States, 7 Cranch 339,
Probable cause pertains to "such facts as are sufficient to
348. Since Marshall’s time, at any rate, it has come to mean more
engender a well-founded belief that a crime has been committed
than bare suspicion: Probable cause exists where "the facts and
and that respondent is probably guilty thereof." 66 Preliminary
circumstances within their [the officers’] knowledge and of which
investigation is the inquiry or proceeding to determine whether
they had reasonably trustworthy information [are] sufficient in
there is probable cause.67
themselves to warrant a man of reasonable caution in the belief
that" an offense has been or is being committed. Carroll v. United
In Webb v. De Leon, 68 this court ruled that determination of States, 267 U. S. 132, 162.
probable cause during preliminary investigation does not require
trial-like evaluation of evidence since existence of probable cause
These long-prevailing standards seek to safeguard citizens from
does not equate to guilt:
rash and unreasonable interferences with privacy and from
unfounded charges of crime. They also seek to give fair leeway for
It ought to be emphasized that in determining probable cause, the enforcing the law in the community’s protection. Because many
average man weighs facts and circumstances without resorting to situations which confront officers in the course of executing their
the calibrations of our technical rules of evidence of which his duties are more or less ambiguous, room must be allowed for
knowledge is nil. Rather, he relies on the calculus of common some mistakes on their part. But the mistakes must be those of
sense of which all reasonable men have an abundance. reasonable men, acting on facts leading sensibly to their
conclusions of probability. The rule of probable cause is a
.... practical, non technical conception affording the best compromise
that has been found for accommodating these often opposing
. . . A finding of probable cause merely binds over the suspect to interests. Requiring more would unduly hamper law enforcement.
stand trial. It is not a pronouncement of guilt. 69 To allow less would be to leave law-abiding citizens at the mercy
of the officers’ whim or caprice.
The news footage is copyrightable. SEC. 175. Unprotected Subject Matter.—Notwithstanding the
provisions of Sections 172 and 173, no protection shall extend,
The Intellectual Property Code is clear about the rights afforded to under this law, to any idea, procedure, system, method or
authors of various kinds of work. Under the Code, "works are operation, concept, principle, discovery or mere data as such,
protected by the sole fact of their creation, irrespective of their even if they are expressed, explained, illustrated or embodied in a
mode or form of expression, as well as of their content, quality work; news of the day and other miscellaneous facts having the
and purpose."79 These include "[a]udiovisual works and character of mere items of press information; or any official text
cinematographic works and works produced by a process of a legislative, administrative or legal nature, as well as any
analogous to cinematography or any process for making official translation thereof.
audiovisual recordings." 80
What then is the subject matter of petitioners’ copyright? This
Contrary to the old copyright law, 81 the Intellectual Property Code Court is of the opinion that petitioner BJPI’s copyright covers
does not require registration of the work to fully recover in an audio-visual recordings of each episode of Rhoda and Me, as
infringement suit. Nevertheless, both copyright laws provide that falling within the class of works mentioned in P.D. 49, §2(M),to
copyright for a work is acquired by an intellectual creator from the wit:
moment of creation.82
Cinematographic works and works produced by a process
It is true that under Section 175 of the Intellectual Property Code, analogous to cinematography or any process for making audio-
"news of the day and other miscellaneous facts having the visual recordings;
character of mere items of press information" are considered
unprotected subject matter.83 However, the Code does not state The copyright does not extend to the general concept or format of
its dating game show. Accordingly, by the very nature of the
subject of petitioner BJPI’s copyright, the investigating prosecutor
should have the opportunity to compare the videotapes of the A treatise on the composition and use of medicines, be they old or
two shows. new; on the construction and use of ploughs or watches or churns;
or on the mixture and application of colors for painting or dyeing;
Mere description by words of the general format of the two dating or on the mode of drawing lines to produce the effect of
game shows is insufficient; the presentation of the master perspective, would be the subject of copyright; but no one would
videotape in evidence was indispensable to the determination of contend that the copyright of the treatise would give the exclusive
the existence of probable cause. As aptly observed by respondent right to the art or manufacture described therein. The copyright of
Secretary of Justice: the book, if not pirated from other works, would be valid without
regard to the novelty or want of novelty of its subject matter. The
novelty of the art or thing described or explained has nothing to
A television show includes more than mere words can describe
do with the validity of the copyright. To give to the author of the
because it involves a whole spectrum of visuals and effects, video
book an exclusive property in the art described therein, when no
and audio, such that no similarity or dissimilarity may be found by
examination of its novelty has ever been officially made, would be
merely describing the general copyright/format of both dating
a surprise and a fraud upon the public. That is the province of
game shows.90 (Emphasis supplied, citations omitted)
letters patent, not of copyright. The claim to an invention of
discovery of an art or manufacture must be subjected to the
Ideas can be either abstract or concrete. 91 It is the concrete ideas examination of the Patent Office before an exclusive right therein
that are generally referred to as expression: can be obtained; and a patent from the government can only
secure it.
The words "abstract" and "concrete" arise in many cases dealing
with the idea/expression distinction. The Nichols court, for The difference between the two things, letters patent and
example, found that the defendant’s film did not infringe the copyright, may be illustrated by reference to the subjects just
plaintiff’s play because it was "too generalized an abstraction from enumerated. Take the case of medicines. Certain mixtures are
what plaintiff wrote . . . only a part of her ideas." In Eichel v. found to be of great value in the healing art. If the discoverer
Marcin, the court said that authors may exploit facts, experiences, writes and publishes a book on the subject (as regular physicians
field of thought, and general ideas found in another’s work, generally do), he gains no exclusive right to the manufacture and
"provided they do not substantially copy a concrete form, in which sale of the medicine; he gives that to the public. If he desires to
the circumstances and ideas have been developed, arranged, and acquire such exclusive right, he must obtain a patent for the
put into shape." Judge Hand, in National Comics Publications, Inc. mixture as a new art, manufacture or composition of matter. He
v. Fawcett Publications, Inc. said that "no one infringes, unless he may copyright his book, if he pleases; but that only secures to him
descends so far into what is concrete as to invade. . . the exclusive right of printing and publishing his book. So of all
‘expression.’" other inventions or discoveries.
These cases seem to be distinguishing "abstract" ideas from The copyright of a book on perspective, no matter how many
"concrete" tangible embodiments of these abstractions that may drawings and illustrations it may contain, gives no exclusive right
be termed expression. However, if the concrete form of a work to the modes of drawing described, though they may never have
means more than the literal expression contained within it, it is been known or used before. By publishing the book without
difficult to determine what is meant by "concrete." Webster's New getting a patent for the art, the latter is given to the public.
Twentieth Century Dictionary of the English Language provides
several meanings for the word concrete. These include: "having a
....
material, perceptible existence; of, belonging to, or characterized
by things or events that can be perceived by the senses; real;
actual;" and "referring to a particular; specific, not general or Now, whilst no one has a right to print or publish his book, or any
abstract."92 material part thereof, as a book intended to convey instruction in
the art, any person may practice and use the art itself which he
has described and illustrated therein. The use of the art is a totally
In Pearl & Dean (Phil.), Incorporated v. Shoemart,
different thing from a publication of the book explaining it. The
Incorporated,93 this court, citing the American case of Baker v.
copyright of a book on bookkeeping cannot secure the exclusive
Selden, distinguished copyright from patents and illustrated how
right to make, sell and use account books prepared upon the plan
an idea or concept is different from the expression of that idea:
set forth in such book. Whether the art might or might not have
been patented, is a question, which is not before us. It was not
In the oft-cited case of Baker vs. Selden, the United States patented, and is open and free to the use of the public. And, of
Supreme Court held that only the expression of an idea is course, in using the art, the ruled lines and headings of accounts
protected by copyright, not the idea itself. In that case, the must necessarily be used as incident to it.
plaintiff held the copyright of a book which expounded on a new
accounting system he had developed. The publication illustrated
The plausibility of the claim put forward by the complainant in this
blank forms of ledgers utilized in such a system. The defendant
case arises from a confusion of ideas produced by the peculiar
reproduced forms similar to those illustrated in the plaintiff’s
nature of the art described in the books, which have been made
copyrighted book. The US Supreme Court ruled that:
the subject of copyright. In describing the art, the illustrations and
diagrams employed happened to correspond more closely than
"There is no doubt that a work on the subject of book-keeping, usual with the actual work performed by the operator who uses
though only explanatory of well known systems, may be the the art. x x x The description of the art in a book, though entitled
subject of a copyright; but, then, it is claimed only as a book. x x x to the benefit of copyright, lays no foundation for an exclusive
But there is a clear distinction between the books, as such, and claim to the art itself. The object of the one is explanation; the
the art, which it is, intended to illustrate. The mere statement of object of the other is use. The former may be secured by
the proposition is so evident that it requires hardly any argument copyright. The latter can only be secured, if it can be secured at
to support it. The same distinction may be predicated of every all, by letters patent."94 (Emphasis supplied)
other art as well as that of bookkeeping.
News or the event itself is not copyrightable. However, an event did not undergo any transformation where there is a need to track
can be captured and presented in a specific medium. As elements of the original.
recognized by this court in Joaquin, television "involves a whole
spectrum of visuals and effects, video and audio." 95 News Having established the protectible nature of news footage, we
coverage in television involves framing shots, using images, now discuss the concomitant rights accorded to authors. The
graphics, and sound effects.96 It involves creative process and authors of a work are granted several rights in relation to it,
originality. Television news footage is an expression of the news. including copyright or economic rights:
In the United States, a line of cases dwelt on the possibility of SECTION 177. Copyright or Economic Rights. — Subject to the
television newscasts to be copyrighted. 97 Most of these cases provisions of Chapter VIII, copyright or economic rights shall
focused on private individuals’ sale or resale of tapes of news consist of the exclusive right to carry out, authorize or prevent the
broadcasts. Conflicting decisions were rendered by its courts. following acts:
Noteworthy, however, is the District Court’s pronouncement in
Pacific & Southern Co. v. Duncan, 98 which involves a News
177.1. Reproduction of the work or substantial portion
Monitoring Service’s videotaping and sale of WXIA-TV’s news
of the work;
broadcasts:
The idea/expression dichotomy has long been subject to debate in 177.7. Other communication to the public of the work.
the field of copyright law. Abolishing the dichotomy has been (Sec. 5, P. D. No. 49a) (Emphasis supplied)
proposed, in that non-protectibility of ideas should be re-
examined, if not stricken, from decisions and the law: Under Section 211 of the Intellectual Property Code, broadcasting
organizations are granted a more specific set of rights called
If the underlying purpose of the copyright law is the dual one related or neighboring rights:
expressed by Lord Mansfield, the only excuse for the continuance
of the idea-expression test as a judicial standard for determining SECTION 211. Scope of Right. — Subject to the provisions of
protectibility would be that it was or could be a truly useful Section 212, broadcasting organizations shall enjoy the exclusive
method of determining the proper balance between the creator’s right to carry out, authorize or prevent any of the following acts:
right to profit from his work and the public's right that the
"progress of the arts not be retarded." 211.1. The rebroadcasting of their broadcasts;
. . . [A]s used in the present-day context[,] the dichotomy has little 211.2. The recording in any manner, including the
or no relationship to the policy which it should effectuate. Indeed, making of films or the use of video tape, of their
all too often the sweeping language of the courts regarding the broadcasts for the purpose of communication to the
non-protectibility of ideas gives the impression that this is of itself public of television broadcasts of the same; and
a policy of the law, instead of merely a clumsy and outdated tool
to achieve a much more basic end.100
211.3. The use of such records for fresh transmissions or
for fresh recording. (Sec. 52, P.D. No. 49) (Emphasis
The idea/expression dichotomy is a complex matter if one is trying supplied)
to determine whether a certain material is a copy of
another.101 This dichotomy would be more relevant in
Section 212 of the Code provides:
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 CHAPTER XV
material under review — which is the subject of the controversy LIMITATIONS ON PROTECTION
— is an exact copy of the original. Respondents did not subject
ABS-CBN’s footage to any editing of their own. The news footage
Section 212. Limitations on Rights. - Sections 203, 208 and 209 (ii) of fixations, made in accordance with the
shall not apply where the acts referred to in those Sections are provisions of Article 15, of their broadcasts, if
related to: the reproduction is made for purposes
different from those referred to in those
212.1. The use by a natural person exclusively for his provisions;
own personal purposes;
(d) the communication to the public of their television
212.2. Using short excerpts for reporting current events; broadcasts if such communication is made in places
accessible to the public against payment of an entrance
fee; it shall be a matter for the domestic law of the State
212.3. Use solely for the purpose of teaching or for
where protection of this right is claimed to determine
scientific research; and
the conditions under which it may be exercised.
The Angelo dela Cruz footage does not fall under the rule on
....
Section 212.4 of the Intellectual Property Code on fair use of the
broadcast.
CHAPTER XV
LIMITATIONS ON PROTECTION
....
It is also worthy to note that the Honorable Court of Appeals seem 185.1. The fair use of a copyrighted work for criticism, comment,
to contradict itself when it relied on the provisions of fair use in its news reporting, teaching including multiple copies for classroom
assailed rulings considering that it found that the Angelo dela Cruz use, scholarship, research, and similar purposes is not an
footage is not copyrightable, given that the fair use presupposes infringement of copyright. . . . In determining whether the use
an existing copyright. Thus, it is apparent that the findings of the made of a work in any particular case is fair use, the factors to be
Honorable Court of Appeals are erroneous and based on wrong considered shall include:
assumptions.109 (Underscoring in the original)
a. The purpose and character of the use, including Of course, in the real world there are exceptions to this perfect
whether such use is of a commercial nature or is for economic view. However, there are also many caveats with these
non-profit educational purposes; exceptions. A common exception is that some stations
rebroadcast the news of others. The caveat is that generally, the
two stations are not competing for market share. CNN, for
b. The nature of the copyrighted work;
example, often makes news stories available to local broadcasters.
First, the local broadcaster is often not affiliated with a network
c. The amount and substantiality of the portion used in (hence its need for more comprehensive programming), confining
relation to the copyrighted work as a whole; and any possible competition to a small geographical area. Second, the
local broadcaster is not in competition with CNN. Individuals who
d. The effect of the use upon the potential market for or do not have cable TV (or a satellite dish with decoder) cannot
value of the copyrighted work. receive CNN; therefore there is no competition. . . . Third, CNN
sells the right of rebroadcast to the local stations. Ted Turner,
First, the purpose and character of the use of the copyrighted owner of CNN, does not have First Amendment freedom of access
material must fall under those listed in Section 185, thus: argument foremost on his mind. (Else he would give everyone free
"criticism, comment, news reporting, teaching including multiple cable TV so everyone could get CNN.) He is in the business for a
copies for classroom use, scholarship, research, and similar profit. Giving away resources does not a profit make. 123 (Emphasis
purposes."117 The purpose and character requirement is important supplied)
in view of copyright’s goal to promote creativity and encourage
creation of works. Hence, commercial use of the copyrighted work The high value afforded to limited time periods is also seen in
can be weighed against fair use. other media. In social media site Instagram, users are allowed to
post up to only 15 seconds of video. 124 In short-video sharing
The "transformative test" is generally used in reviewing the website Vine,125 users are allowed a shorter period of six (6)
purpose and character of the usage of the copyrighted seconds per post. The mobile application 1 Second Everyday takes
work.118 This court must look into whether the copy of the work it further by capturing and stitching one (1) second of video
adds "new expression, meaning or message" to transform it into footage taken daily over a span of a certain period.126
something else.119 "Meta-use" can also occur without necessarily
transforming the copyrighted work used.120 Whether the alleged five-second footage may be considered fair
use is a matter of defense. We emphasize that the case involves
Second, the nature of the copyrighted work is significant in determination of probable cause at the preliminary investigation
deciding whether its use was fair. If the nature of the work is more stage. Raising the defense of fair use does not automatically mean
factual than creative, then fair use will be weighed in favor of the that no infringement was committed. The investigating prosecutor
user. has full discretion to evaluate the facts, allegations, and evidence
during preliminary investigation. Defenses raised during
preliminary investigation are subject to further proof and
Third, the amount and substantiality of the portion used is evaluation before the trial court. Given the insufficiency of
important to determine whether usage falls under fair use. An available evidence, determination of whether the Angelo dela
exact reproduction of a copyrighted work, compared to a small Cruz footage is subject to fair use is better left to the trial court
portion of it, can result in the conclusion that its use is not fair. where the proceedings are currently pending. GMA-7’s
There may also be cases where, though the entirety of the rebroadcast of ABS-CBN’s news footage without the latter’s
copyrighted work is used without consent, its purpose determines consent is not an issue. The mere act of rebroadcasting without
that the usage is still fair. 121 For example, a parody using a authority from the owner of the broadcast gives rise to the
substantial amount of copyrighted work may be permissible as fair probability that a crime was committed under the Intellectual
use as opposed to a copy of a work produced purely for economic Property Code.
gain. Lastly, the effect of the use on the copyrighted work’s
market is also weighed for or against the user. If this court finds
that the use had or will have a negative impact on the copyrighted VII
work’s market, then the use is deemed unfair.
Respondents cannot invoke the defense of good faith to argue
The structure and nature of broadcasting as a business requires that no probable cause exists.
assigned values for each second of broadcast or airtime. In most
cases, broadcasting organizations generate revenue through sale Respondents argue that copyright infringement is malum in se, in
of time or timeslots to advertisers, which, in turn, is based on that "[c]opying alone is not what is being prohibited, but its
market share:122 Once a news broadcast has been transmitted, the injurious effect which consists in the lifting from the copyright
broadcast becomes relatively worthless to the station. In the case owners’ film or materials, that were the result of the latter’s
of the aerial broadcasters, advertising sales generate most of the creativity, work and productions and without authority,
profits derived from news reports. Advertising rates are, in turn, reproduced, sold and circulated for commercial use to the
governed by market share. Market share is determined by the detriment of the latter."127
Infringement under the Intellectual Property Code is malum intended to commit a crime; but he did intend to commit an act,
prohibitum. The Intellectual Property Code is a special law. and that act is, by the very nature of things, the crime
Copyright is a statutory creation: itself[.]"135 When an act is prohibited by a special law, it is
considered injurious to public welfare, and the performance of the
Copyright, in the strict sense of the term, is purely a statutory prohibited act is the crime itself.136
right. It is a new or independent right granted by the statute, and
not simply a pre-existing right regulated by the statute. Being a Volition, or intent to commit the act, is different from criminal
statutory grant, the rights are only such as the statute confers, intent. Volition or voluntariness refers to knowledge of the act
and may be obtained and enjoyed only with respect to the being done. On the other hand, criminal intent — which is
subjects and by the persons, and on terms and conditions different from motive, or the moving power for the commission of
specified in the statute.128 the crime137 — refers to the state of mind beyond voluntariness. It
is this intent that is being punished by crimes mala in se.
The general rule is that acts punished under a special law are
malum prohibitum.129 "An act which is declared malum Unlike other jurisdictions that require intent for a criminal
prohibitum, malice or criminal intent is completely immaterial." 130 prosecution of copyright infringement, the Philippines does not
statutorily support good faith as a defense. Other jurisdictions
In contrast, crimes mala in seconcern inherently immoral acts: provide in their intellectual property codes or relevant laws that
mens rea, whether express or implied, is an element of criminal
copyright infringement.138
Not every criminal act, however, involves moral turpitude. It is for
this reason that "as to what crime involves moral turpitude, is for
the Supreme Court to determine". In resolving the foregoing In Canada, criminal offenses are categorized under three (3) kinds:
question, the Court is guided by one of the general rules that "the full mens rea offence, meaning the accused’s actual or
crimes mala in se involve moral turpitude, while crimes mala subjective state of mind has to be proved; strict liability offences
prohibita do not, the rationale of which was set forth in "Zari v. where no mens rea has to be proved but the accused can avoid
Flores," to wit: liability if he can prove he took all reasonable steps to avoid the
particular event; [and] absolute liability offences where
Parliament has made it clear that guilt follows proof of the
It (moral turpitude) implies something immoral in itself, regardless
prescribed act only."139 Because of the use of the word
of the fact that it is punishable by law or not. It must not be
"knowingly" in Canada’s Copyright Act, it has been held that
merely mala prohibita, but the act itself must be inherently
copyright infringement is a full mens rea offense. 140
immoral. The doing of the act itself, and not its prohibition by
statute fixes the moral turpitude. Moral turpitude does not,
however, include such acts as are not of themselves immoral but In the United States, willful intent is required for criminal
whose illegality lies in their being positively prohibited. (Emphasis copyright infringement.141 Before the passage of the No Electronic
supplied) Theft Act, "civil copyright infringements were violations of criminal
copyright laws only if a defendant willfully infringed a copyright
‘for purposes of commercial advantage or private financial
[These] guidelines nonetheless proved short of providing a clear
gain.’"142 However, the No Electronic Theft Act now allows criminal
cut solution, for in International Rice Research Institute v. NLRC,
copyright infringement without the requirement of commercial
the Court admitted that it cannot always be ascertained whether
gain. The infringing act may or may not be for profit. 143
moral turpitude does or does not exist by merely classifying a
crime as malum in se or as malum prohibitum. There are crimes
which are mala in se and yet but rarely involve moral turpitude There is a difference, however, between the required liability in
and there are crimes which involve moral turpitude and are mala civil copyright infringement and that in criminal copyright
prohibita only. In the final analysis, whether or not a crime infringement in the United States. Civil copyright infringement
involves moral turpitude is ultimately a question of fact and does not require culpability and employs a strict liability
frequently depends on all the circumstances surrounding the regime144 where "lack of intention to infringe is not a defense to
violation of the statue.131 (Emphasis in the original) an action for infringement."145
"Implicit in the concept of mala in se is that of mens rea." 132 Mens In the Philippines, the Intellectual Property Code, as amended,
reais defined as "the nonphysical element which, combined with provides for the prosecution of criminal actions for the following
the act of the accused, makes up the crime charged. Most violations of intellectual property rights: Repetition of
frequently it is the criminal intent, or the guilty mind[.]" 133 Infringement of Patent (Section 84); Utility Model (Section 108);
Industrial Design (Section 119); Trademark Infringement (Section
155 in relation to Section 170); Unfair Competition (Section 168 in
Crimes mala in sepre suppose that the person who did the
relation to Section 170); False Designations of Origin, False
felonious act had criminal intent to do so, while crimes mala
Description or Representation (Section 169.1 in relation to Section
prohibita do not require knowledge or criminal intent:
170); infringement of copyright, moral rights, performers’ rights,
producers’ rights, and broadcasting rights (Section 177, 193, 203,
In the case of mala in se it is necessary, to constitute a punishable 208 and 211 in relation to Section 217); and other violations of
offense, for the person doing the act to have knowledge of the intellectual property rights as may be defined by law.
nature of his act and to have a criminal intent; in the case of mala
prohibita, unless such words as "knowingly" and "willfully" are
The Intellectual Property Code requires strict liability for copyright
contained in the statute, neither knowledge nor criminal intent is
infringement whether for a civil action or a criminal prosecution; it
necessary. In other words, a person morally quite innocent and
does not require mens rea or culpa:146
with every intention of being a law abiding citizen becomes a
criminal, and liable to criminal penaltes, if he does an act
prohibited by these statutes. 134 (Emphasis supplied) Hence, SECTION 216. Remedies for Infringement. —
"[i]ntent to commit the crime and intent to perpetrate the act
must be distinguished. A person may not have consciously
216.1. Any person infringing a right protected under this c. Imprisonment of six (6) years and one (1)
law shall be liable: day to nine (9) years plus a fine ranging from
Five hundred thousand pesos (₱500,000) to
a. To an injunction restraining such One million five hundred thousand pesos
infringement. The court may also order the (₱1,500,000) for the third and subsequent
defendant to desist from an infringement, offenses.
among others, to prevent the entry into the
channels of commerce of imported goods that d. In all cases, subsidiary imprisonment in
involve an infringement, immediately after cases of insolvency.
customs clearance of such goods.
217.2. In determining the number of years of
b. Pay to the copyright proprietor or his imprisonment and the amount of fine, the court shall
assigns or heirs such actual damages, including consider the value of the infringing materials that the
legal costs and other expenses, as he may defendant has produced or manufactured and the
have incurred due to the infringement as well damage that the copyright owner has suffered by reason
as the profits the infringer may have made due of the infringement.
to such infringement, and in proving profits
the plaintiff shall be required to prove sales 217.3. Any person who at the time when copyright
only and the defendant shall be required to subsists in a work has in his possession an article which
prove every element of cost which he claims, he knows, or ought to know, to be an infringing copy of
or, in lieu of actual damages and profits, such the work for the purpose of: a. Selling, letting for hire, or
damages which to the court shall appear to be by way of trade offering or exposing for sale, or hire, the
just and shall not be regarded as penalty. article;
c. Deliver under oath, for impounding during b. Distributing the article for purpose of trade,
the pendency of the action, upon such terms or for any other purpose to an extent that will
and conditions as the court may prescribe, prejudice the rights of the copyright owner in
sales invoices and other documents evidencing the work; or
sales, all articles and their packaging alleged to
infringe a copyright and implements for
c. Trade exhibit of the article in public, shall be
making them.
guilty of an offense and shall be liable on
conviction to imprisonment and fine as above
d. Deliver under oath for destruction without mentioned. (Sec. 29, P.D. No. 49a) (Emphasis
any compensation all infringing copies or supplied)
devices, as well as all plates, molds, or other
means for making such infringing copies as the
The law is clear. Inasmuch as there is wisdom in prioritizing the
court may order.
flow and exchange of ideas as opposed to rewarding the creator,
it is the plain reading of the law in conjunction with the actions of
e. Such other terms and conditions, including the legislature to which we defer. We have continuously
the payment of moral and exemplary "recognized the power of the legislature . . . to forbid certain acts
damages, which the court may deem proper, in a limited class of cases and to make their commission criminal
wise and equitable and the destruction of without regard to the intent of the doer. Such legislative
infringing copies of the work even in the event enactments are based on the experience that repressive measures
of acquittal in a criminal case. which depend for their efficiency upon proof of the dealer’s
knowledge or of his intent are of little use and rarely accomplish
216.2. In an infringement action, the court shall also their purposes."147
have the power to order the seizure and impounding of
any article which may serve as evidence in the court Respondents argue that live broadcast of news requires a different
proceedings. (Sec. 28, P.D. No. 49a) treatment in terms of good faith, intent, and knowledge to
commit infringement. To argue this point, they rely on the
SECTION 217. Criminal Penalties. — 217.1. Any person infringing differences of the media used in Habana et al. v. Robles, Columbia
any right secured by provisions of Part IV of this Actor aiding or Pictures v. Court of Appeals, and this case:
abetting such infringement shall be guilty of a crime punishable
by: Petitioner ABS-CBN argues that lack of notice that the Angelo dela
Cruz was under embargo is not a defense in copyright
a. Imprisonment of one (1) year to three (3) infringement and cites the case of Columbia Pictures vs. Court of
years plus a fine ranging from Fifty thousand Appeals and Habana et al. vs. Robles(310 SCRA 511). However,
pesos (₱50,000) to One hundred fifty thousand these cases refer to film and literary work where obviously there is
pesos (₱150,000) for the first offense. "copying" from an existing material so that the copier knew that
he is copying from an existing material not owned by him. But,
b. Imprisonment of three (3) years and one (1) how could respondents know that what they are "copying was not
day to six (6) years plus a fine ranging from [theirs]" when they were not copying but merely receiving live
One hundred fifty thousand pesos (₱150,000) video feed from Reuters and CNN which they aired? What they
to Five hundred thousand pesos (₱500,000) knew and what they aired was the Reuters live video feed and the
for the second offense. CNN feed which GMA-7 is authorized to carry in its news
broadcast, it being a subscriber of these companies[.]
It is apt to stress that the subject of the alleged copyright In cases of infringement, copying alone is not what is prohibited.
infringement is not a film or literary work but live broadcast of The copying must produce an "injurious effect". Here, the injury
news footage. In a film or literary work, the infringer is confronted consists in that respondent Robles lifted from petitioners’ book
face to face with the material he is allegedly copying and materials that were the result of the latter’s research work and
therefore knows, or is presumed to know, that what he is copying compilation and misrepresented them as her own. She circulated
is owned by another. Upon the other hand, in live broadcast, the the book DEP for commercial use and did not acknowledge
alleged infringer is not confronted with the fact that the material petitioners as her source.152 (Emphasis supplied)
he airs or re-broadcasts is owned by another, and therefore, he
cannot be charged of knowledge of ownership of the material by Habana and Columbia Pictures did not require knowledge of the
another. This specially obtains in the Angelo dela Cruz news infringement to constitute a violation of the copyright. One does
footage which GMA-7 received from Reuters and CNN. Reuters not need to know that he or she is copying a work without
and CNN were beaming live videos from the coverage which GMA- consent to violate copyright law. Notice of fact of the embargo
7 received as a subscriber and, in the exercise of its rights as a from Reuters or CNN is not material to find probable cause that
subscriber, GMA-7 picked up the live video and simultaneously re- respondents committed infringement. Knowledge of infringement
broadcast it. In simultaneously broadcasting the live video footage is only material when the person is charged of aiding and abetting
of Reuters, GMA-7 did not copy the video footage of petitioner a copyright infringement under Section 217 of the Intellectual
ABS-CBN[.]148 (Emphasis in the original) Property Code.153
Respondents’ arguments must fail. We look at the purpose of copyright in relation to criminal
prosecutions requiring willfulness: Most importantly, in defining
Respondents are involved and experienced in the broadcasting the contours of what it means to willfully infringe copyright for
business. They knew that there would be consequences in purposes of criminal liability, the courts should remember the
carrying ABS-CBN’s footage in their broadcast. That is why GMA-7 ultimate aim of copyright. Copyright is not primarily about
allegedly cut the feed from Reuters upon seeing ABS-CBN’s ogo providing the strongest possible protection for copyright owners
and reporter. To admit a different treatment for broadcasts would so that they have the highest possible incentive to create more
mean abandonment of a broadcasting organization’s minimum works. The control given to copyright owners is only a means to an
rights, including copyright on the broadcast material and the right end: the promotion of knowledge and learning. Achieving that
against unauthorized rebroadcast of copyrighted material. The underlying goal of copyright law also requires access to
nature of broadcast technology is precisely why related or copyrighted works and it requires permitting certain kinds of uses
neighboring rights were created and developed. Carving out an of copyrighted works without the permission of the copyright
exception for live broadcasts would go against our commitments owner. While a particular defendant may appear to be deserving
under relevant international treaties and agreements, which of criminal sanctions, the standard for determining willfulness
provide for the same minimum rights.149 should be set with reference to the larger goals of copyright
embodied in the Constitution and the history of copyright in this
Contrary to respondents’ assertion, this court in country.154
Habana,150 reiterating the ruling in Columbia Pictures, 151 ruled that
lack of knowledge of infringement is not a valid defense. Habana In addition, "[t]he essence of intellectual piracy should be essayed
and Columbia Pictures may have different factual scenarios from in conceptual terms in order to underscore its gravity by an
this case, but their rulings on copyright infringement are appropriate understanding thereof. Infringement of a copyright is
analogous. In Habana, petitioners were the authors and copyright a trespass on a private domain owned and occupied by the owner
owners of English textbooks and workbooks. The case was of the copyright, and, therefore, protected by law, and
anchored on the protection of literary and artistic creations such infringement of copyright, or piracy, which is a synonymous term
as books. In Columbia Pictures, video tapes of copyrighted films in this connection, consists in the doing by any person, without
were the subject of the copyright infringement suit. the consent of the owner of the copyright, of anything the sole
right to do which is conferred by statute on the owner of the
In Habana, knowledge of the infringement is presumed when the copyright."155
infringer commits the prohibited act:
Intellectual property rights, such as copyright and the neighboring
The essence of intellectual piracy should be essayed in conceptual right against rebroadcasting, establish an artificial and limited
terms in order to underscore its gravity by an appropriate monopoly to reward creativity. Without these legally enforceable
understanding thereof. Infringement of a copyright is a trespass rights, creators will have extreme difficulty recovering their costs
on a private domain owned and occupied by the owner of the and capturing the surplus or profit of their works as reflected in
copyright, and, therefore, protected by law, and infringement of their markets. This, in turn, is based on the theory that the
copyright, or piracy, which is a synonymous term in this possibility of gain due to creative work creates an incentive which
connection, consists in the doing by any person, without the may improve efficiency or simply enhance consumer welfare or
consent of the owner of the copyright, of anything the sole right utility. More creativity redounds to the public good.
to do which is conferred by statute on the owner of the copyright.
These, however, depend on the certainty of enforcement.
.... Creativity, by its very nature, is vulnerable to the free rider
problem. It is easily replicated despite the costs to and efforts of
the original creator. The more useful the creation is in the market,
A copy of a piracy is an infringement of the original, and it is no
the greater the propensity that it will be copied. The most creative
defense that the pirate, in such cases, did not know whether or
and inventive individuals are usually those who are unable to
not he was infringing any copyright; he at least knew that what he
recover on their creations.
was copying was not his, and he copied at his peril.
Thus, unless clearly provided in the law, offenses involving However, the criminal liability of a corporation’s officers or
infringement of copyright protections should be considered employees stems from their active participation in the commission
malum prohibitum. It is the act of infringement, not the intent, of the wrongful act:
which causes the damage. To require or assume the need to prove
intent defeats the purpose of intellectual property protection. The principle applies whether or not the crime requires the
consciousness of wrongdoing. It applies to those corporate agents
Nevertheless, proof beyond reasonable doubt is still the standard who themselves commit the crime and to those, who, by virtue of
for criminal prosecutions under the Intellectual Property Code. their managerial positions or other similar relation to the
corporation, could be deemed responsible for its commission, if by
VIII virtue of their relationship to the corporation, they had the power
to prevent the act. Moreover, all parties active in promoting a
crime, whether agents or not, are principals. Whether such
Respondents argue that GMA-7’s officers and employees cannot
officers or employees are benefited by their delictual acts is not a
be held liable for infringement under the Intellectual Property
touchstone of their criminal liability. Benefit is not an operative
Code since it does not expressly provide direct liability of the
fact.160 (Emphasis supplied) An accused’s participation in criminal
corporate officers. They explain that "(i) a corporation may be
acts involving violations of intellectual property rights is the
charged and prosecuted for a crime where the penalty is fine or
subject of allegation and proof. The showing that the accused did
both imprisonment and fine, and if found guilty, may be fined; or
the acts or contributed in a meaningful way in the commission of
(ii) a corporation may commit a crime but if the statute prescribes
the infringements is certainly different from the argument of lack
the penalty therefore to be suffered by the corporate officers,
of intent or good faith. Active participation requires a showing of
directors or employees or other persons, the latter shall be
overt physical acts or intention to commit such acts. Intent or
responsible for the offense."156
good faith, on the other hand, are inferences from acts proven to
have been or not been committed.
Section 217 of the Intellectual Property Code states that "any
person" may be found guilty of infringement. It also imposes the
We find that the Department of Justice committed grave abuse of
penalty of both imprisonment and fine:
discretion when it resolved to file the Information against
respondents despite lack of proof of their actual participation in
Section 217. Criminal Penalties. - 217.1. Any person infringing any the alleged crime.
right secured by provisions of Part IV of this Act or aiding or
abetting such infringement shall be guilty of a crime punishable
Ordering the inclusion of respondents Gozon, GMA-7 President;
by:
Duavit, Jr., Executive Vice-President; Flores, Vice-President for
News and Public Affairs; and Soho, Director for News, as
(a) Imprisonment of one (1) year to three (3) years plus a respondents, Secretary Agra overturned the City Prosecutor’s
fine ranging from Fifty thousand pesos (₱50,000) to One finding that only respondents Dela Peña-Reyes and Manalastas
hundred fifty thousand pesos (₱150,000) for the first are responsible for the crime charged due to their duties. 161 The
offense. Agra Resolution reads:
(b) Imprisonment of three (3) years and one (1) day to Thus, from the very nature of the offense and the penalty
six (6) years plus a fine ranging from One hundred fifty involved, it is necessary that GMA-7’s directors, officers,
thousand pesos (₱150,000) to Five hundred thousand employees or other officers thereof responsible for the offense
pesos (₱500,000) for the second offense. shall be charged and penalized for violation of the Sections 177
and 211 of Republic Act No. 8293. In their complaint for libel,
(c) Imprisonment of six (6) years and one (1) day to nine respondents Felipe L Gozon, Gilberto R. Duavit, Jr., Marissa L.
(9) years plus a fine ranging from five hundred thousand Flores, Jessica A.Soho, Grace Dela Pena-Reyes, John Oliver T.
pesos (₱500,000) to One million five hundred thousand Manalastas felt they were aggrieved because they were "in charge
pesos (₱1,500,000) for the third and subsequent of the management, operations and production of news and
offenses. public affairs programs of the network" (GMA-7). This is clearly an
admission on respondents’ part. Of course, respondents may
(d) In all cases, subsidiary imprisonment in cases of argue they have no intention to infringe the copyright of ABS-CBN;
insolvency. (Emphasis supplied) Corporations have that they acted in good faith; and that they did not directly cause
separate and distinct personalities from their officers or the airing of the subject footage, but again this is preliminary
directors.157 This court has ruled that corporate officers investigation and what is required is simply probable cause.
and/or agents may be held individually liable for a crime Besides, these contentions can best be addressed in the course of
committed under the Intellectual Property Code: 158 trial.162 (Citation omitted)
Petitioners, being corporate officers and/or directors, through In contrast, the Office of the City Prosecutor, in the Resolution
whose act, default or omission the corporation commits a crime, dated December 3, 2004, found that respondents Gozon, Duavit,
may themselves be individually held answerable for the crime. . . . Jr., Flores, and Soho did not have active participation in the
The existence of the corporate entity does not shield from commission of the crime charged:
prosecution the corporate agent who knowingly and intentionally
caused the corporation to commit a crime. Thus, petitioners This Office, however, does not subscribe to the view that
cannot hide behind the cloak of the separate corporate respondents Atty. Felipe Gozon, Gilberto Duavit, Marissa Flores
personality of the corporation to escape criminal liability. A and Jessica Soho should be held liable for the said offense.
Complainant failed to present clear and convincing evidence that
the said respondents conspired with Reyes and Manalastas. No
evidence was adduced to prove that these respondents had an ADVISORY - - +++LIVE COVER PLANS+++
active participation in the actual commission of the copyright PHILIPPINES: HOSTAGE RETURN
infringement or they exercised their moral ascendancy over Reyes
and Manalastas in airing the said footage. It must be stressed that, **ATTENTION ALL CLIENTS**
conspiracy must be established by positive and conclusive
evidence. It must be shown to exist as clearly and convincingly as
PLEASE BE ADVISED OF THE FOLLOWING LIVE COVER
the commission of the offense itself.163 (Emphasis supplied,
PLANNED FOR THURSDAY, JULY 22:
citations omitted)
....
The City Prosecutor found respondents Dela Peña-Reyes and
Manalastas liable due to the nature of their work and
responsibilities. He found that: SOURCE: ABS-CBN
TV AND WEB RESTRICTIONS: NO ACCESS PHILIPPINES.
[t]his Office however finds respondents Grace Dela Peña-Reyes
and John Oliver T. Manalastas liable for copyright infringement There is probable cause that respondents Dela Peña-Reyes and
penalized under Republic Act No. 8293. It is undisputed that Manalastas directly committed copyright infringement of ABS-
complainant ABSCBN holds the exclusive ownership and copyright CBN’s news footage to warrant piercing of the corporate veil. They
over the "Angelo [d]ela Cruz news footage". Hence, any airing and are responsible in airing the embargoed Angelo dela Cruz footage.
re-broadcast of the said footage without any consent and They could have prevented the act of infringement had they been
authority from ABS-CBN will be held as an infringement and diligent in their functions as Head of News Operations and
violation of the intellectual property rights of the latter. Program Manager.
Respondents Grace Dela Peña-Reyes as the Head of the News
Operation and John Oliver T. Manalastas as the Program Manager Secretary Agra, however, committed grave abuse of discretion
cannot escape liability since the news control room was under when he ordered the filing of the Information against all
their direct control and supervision. Clearly, they must have been respondents despite the erroneous piercing of the corporate veil.
aware that the said footage coming from Reuters or CNN has a Respondents Gozon, Duavit, Jr., Flores, and Soho cannot be held
"No Access Philippines" advisory or embargo thus cannot be re- liable for the criminal liability of the corporation.
broadcast. We find no merit to the defense of ignorance
interposed by the respondents. It is simply contrary to human Mere membership in the Board or being President per se does not
experience and logic that experienced employees of an mean knowledge, approval, and participation in the act alleged as
established broadcasting network would be remiss in their duty in criminal. There must be a showing of active participation, not
ascertaining if the said footage has an embargo. 164 (Emphasis simply a constructive one.
supplied)
SO ORDERED.