By Rey E. Requejo

The Lopez family-controlled ABS-CBN has lost the infringement case it filed against the Philippine Multi-Media System Inc., a direct-to-home television operator owned by businessman Antonio ?Tonyboy? Cojuangco.

The Supreme Court?s Third Division through Associate Justice Consuelo Ynares-Santiago dismissed ABS-CBN?s petition seeking the reversal of the Court of Appeals decision dated July 12, 2006 that sustained the ruling of the director general of the Intellectual Property Office.

The IPO director general dismissed the ABS-CBN complaint against the Cojuangco company.

The high court affirmed the CA ruling that there is no merit in ABS-CBN?s assertion that PMSI violated its broadcaster?s rights under Section 211 of the IP Code.

Section 211 provides that ?broadcasting organizations shall enjoy the exclusive right to carry out, authorize or prevent the broadcasting of their broadcasts.?

?The director general of the IPO correctly found that PMSI is not engaged in re-broadcasting and thus cannot be considered to have infringed on ABS-CBN?s broadcasting rights and copyright,? the Court stressed.

Associate Justices Ma. Alicia Austria-Martinez, Minita Chico-Nazario, Antonio Eduardo Nachura and Teresita Leonardo-de Castro concurred with the ruling.

In ruling against ABS-CBN, the high tribunal noted that re-broadcasting as defined in Article 3 (g) of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, otherwise known as the 1961 Rome Convention, which the Philippines is a signatory, is ?the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.?

It said that PMSI is not a broadcasting organization as it does not have the same responsibilities as those imposed on broadcasting organizations like ABS-CBN.

Besides, the high court said ABS-CBN creates and transmits its own signals, while PMSI merely carries such signals.

According to the tribunal, PMSI also does not produce, select or determine the programs to be shown in Channels 2 and 23 and it does not pass itself off as the origin of such programs.

?Insofar, as Channels 2 and 23 are concerned, PMSI merely retransmits the same in accordance with Memorandum Circular 04-08-88. With regard to its premium channels, it buys the channels from content providers and transmits on an as-is basis to its viewers. Clearly, PMSI does not perform the functions of broadcasting organization; thus, it cannot be said that it is engaged in re-broadcasting Channels 2 and 23,? the SC ruled.

The controversy stemmed from the complaint filed by ABS-CBN with the IPO against PMSI for violations of laws involving property rights. PMSI operates cable TV company Dream Broadcasting System.

The ABS-CBN alleged that PMSI?s unauthorized re-broadcasting of Channels 2 and 23 infringed on its broadcasting rights and copyright.

The Bureau of Legal Affairs of the IPO initially granted ABS-CBN?s petition for a TRO, prompting PMSI to suspend its retransmission of Channels 2 and 23.

Acting on the appeal of PMSI, the director general of IPO reversed the ruling of the BLA and dismissed the petition filed by ABS-CBN.

In its petition for review filed before the CA, the television firm argued that PMSI?s unauthorized re-broadcasting of Channels 2 and 23 is an infringement of its broadcasting rights and copyright under the IP Code.

ABS-CBN insisted that contrary to the claim of PMSI, Memorandum Circular No. 04-08-88 of the NTC excludes DTH satellite television operators.

PMSI has claimed that under the said memorandum, all cable television system operators operating in a community within Grade ?A? or ?B? contours are required to carry the television signals of the authorized television broadcast stations.