Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 108946 January 28, 1999

FRANCISCO G. JOAQUIN, JR., and BJ PRODUCTIONS, INC., petitioners,

vs.
HONORABLE FRANKLIN DRILON, GABRIEL ZOSA, WILLIAM ESPOSO, FELIPE MEDINA, JR.,
and CASEY FRANCISCO, respondents.

MENDOZA, J.:

This is a petition for certiorari. Petitioners seek to annul the resolution of the Department of Justice,
dated August 12, 1992, in Criminal Case No. Q-92-27854, entitled "Gabriel Zosa, et al. v. City
Prosecutor of Quezon City and Francisco Joaquin, Jr.," and its resolution, dated December 3, 1992,
denying petitioner Joaquin's motion for reconsideration.

Petitioner BJ Productions, Inc. (BJPI) is the holder/grantee of Certificate of Copyright No. M922,
dated January 28, 1971, of Rhoda and Me, a dating game show aired from 1970 to 1977.

On June 28, 1973, petitioner BJPI submitted to the National Library an addendum to its certificate of
copyright specifying the show's format and style of presentation.

On July 14, 1991, while watching television, petitioner Francisco Joaquin, Jr., president of BJPI, saw
on RPN Channel 9 an episode of It's a Date, which was produced by IXL Productions, Inc. (IXL). On
July 18, 1991, he wrote a letter to private respondent Gabriel M. Zosa, president and general
manager of IXL, informing Zosa that BJPI had a copyright to Rhoda and Me and demanding that IXL
discontinue airing It's a Date.

In a letter, dated July 19, 1991, private respondent Zosa apologized to petitioner Joaquin and
requested a meeting to discuss a possible settlement. IXL, however, continued airing It's a Date,
prompting petitioner Joaquin to send a second letter on July 25, 1991 in which he reiterated his
demand and warned that, if IXL did not comply, he would endorse the matter to his attorneys for
proper legal action.

Meanwhile, private respondent Zosa sought to register IXL's copyright to the first episode of It's a
Date for which it was issued by the National Library a certificate of copyright August 14, 1991.

Upon complaint of petitioners, an information for violation of P.D. No. 49 was filed against private
respondent Zosa together with certain officers of RPN Channel 9, namely, William Esposo, Felipe
Medina, and Casey Francisco, in the Regional Trial Court of Quezon City where it was docketed as
Criminal Case No. 92-27854 and assigned to Branch 104 thereof. However, private respondent
Zosa sought a review of the resolution of the Assistant City Prosecutor before the Department of
Justice.
On August 12, 1992, respondent Secretary of Justice Franklin M. Drilon reversed the Assistant City
Prosecutor's findings and directed him to move for the dismissal of the case against private
1
respondents. 

Petitioner Joaquin filed a motion for reconsideration, but his motion denied by
respondent Secretary of Justice on December 3, 1992. Hence, this petition.
Petitioners contend that:
1. The public respondent gravely abused his discretion amounting to
lack of jurisdiction — when he invoked non-presentation of the master
tape as being fatal to the existence of probable cause to prove
infringement, despite the fact that private respondents never raised
the same as a controverted issue.

2. The public respondent gravely abused his discretion amounting to

lack of jurisdiction when he arrogated unto himself the determination
of what is copyrightable — an issue which is exclusively within the
jurisdiction of the regional trial court to assess in a proper proceeding.

Both public and private respondents maintain that petitioners failed to establish the existence of
probable cause due to their failure to present the copyrighted master videotape of Rhoda and Me.
They contend that petitioner BJPI's copyright covers only a specific episode of Rhoda and Me and
that the formats or concepts of dating game shows are not covered by copyright protection under
P.D. No. 49.

Non-Assignment of Error.

Petitioners claim that their failure to submit the copyrighted master videotape of the television show
Rhoda and Me was not raised in issue by private respondents during the preliminary investigation
and, therefore, it was error for the Secretary of Justice to reverse the investigating prosecutor's
finding of probable cause on this ground.

A preliminary investigation falls under the authority of the state prosecutor who is given by law the
power to direct and control criminal
2
actions.   He is, however, subject to the control of the Secretary of Justice. Thus, Rule 112, §4 of the Revised Rules of Criminal
Procedure, provides:

Sec. 4. Duty of investigating fiscal. — If the investigating fiscal finds cause to hold the
respondent for trial, he shall prepare the resolution and corresponding information.
He shall certify under oath that he, or as shown by the record, an authorized officer,
has personally examined the complainant and his witnesses, that there is reasonable
ground to believe that a crime has been committed and that the accused is probably
guilty thereof, that the accused was informed of the complaint and of the evidence
submitted against him and that he was given an opportunity to submit controverting
evidence. Otherwise, he shall recommend dismissal of the complaint.

In either case, he shall forward the records of the case to the provincial or city fiscal
or chief state prosecutor within five (5) days from his resolution. The latter shall take
appropriate action thereon ten (10) days from receipt thereof, immediately informing
the parties of said action.
 No complaint or information may be filed or dismissed by an investigating fiscal
without the prior written authority or approval of the provincial or city fiscal or chief
state prosecutor.

Where the investigating assistant fiscal recommends the dismissal of the case but
his findings are reversed by the provincial or city fiscal or chief state prosecutor on
the ground that a probable cause exists, the latter may, by himself, file the
corresponding information against the respondent or direct any other assistant fiscal
or state prosecutor to do so, without conducting another preliminary investigation.

If upon petition by a proper party, the Secretary of Justice reverses the resolution of
the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal
concerned to file the corresponding information without conducting another
preliminary investigation or to dismiss or move for dismissal of the complaint or
information.

In reviewing resolutions of prosecutors, the Secretary of Justice is not precluded from considering
errors, although unassigned, for the purpose of determining whether there is probable cause for
filing cases in court. He must make his own finding, of probable cause and is not confined to the
issues raised by the parties during preliminary investigation. Moreover, his findings are not subject to
review unless shown to have been made with grave abuse.

Opinion of the Secretary of Justice

Petitioners contend, however, that the determination of the question whether the format or
mechanics of a show is entitled to copyright protection is for the court, and not the Secretary of
Justice, to make. They assail the following portion of the resolution of the respondent Secretary of
Justice:

[T]he essence of copyright infringement is the copying, in whole or in part, of

copyrightable materials as defined and enumerated in Section 2 of PD. No. 49. Apart
from the manner in which it is actually expressed, however, the idea of a dating
game show is, in the opinion of this Office, a non-copyrightable material. Ideas,
concepts, formats, or schemes in their abstract form clearly do not fall within the
class of works or materials susceptible of copyright registration as provided in PD.
No. 49. 
3
 (Emphasis added.)
It is indeed true that the question whether the format or mechanics of petitioners television show is
entitled to copyright protection is a legal question for the court to make. This does not, however,
preclude respondent Secretary of Justice from making a preliminary determination of this question in
resolving whether there is probable cause for filing the case in court. In doing so in this case, he did
not commit any grave error.

Presentation of Master Tape

Petitioners claim that respondent Secretary of Justice gravely abused his discretion in ruling that the
master videotape should have been predented in order to determine whether there was probable
cause for copyright infringement. They contend that 20th Century Fox Film Corporation v. Court of
4
Appeals,   on which respondent Secretary of Justice relied in reversing the
resolution of the investigating prosecutor, is inapplicable to the case at bar
because in the present case, the parties presented sufficient evidence which
clearly establish "linkage between the copyright show "Rhoda and Me" and
the infringing TV show "It's a Date." 5

The case of 20th Century Fox Film Corporation involved raids conducted on
various videotape outlets allegedlly selling or renting out "pirated" videotapes.
The trial court found that the affidavits of NBI agents, given in support of the
application for the search warrant, were insufficient without the master tape.
Accordingly, the trial court lifted the search warrants it had previously issued
against the defendants. On petition for review, this Court sustained the action
of the trial court and ruled: 6
The presentation of the master tapes of the copyrighted films from which the pirated
films were allegedly copied, was necessary for the validity of search warrants against
those who have in their possession the pirated films. The petitioner's argument to the
effect that the presentation of the master tapes at the time of application may not be
necessary as these would be merely evidentiary in nature and not determinative of
whether or not a probable cause exists to justify the issuance of the search warrants
is not meritorious. The court cannot presume that duplicate or copied tapes were
necessarily reproduced from master tapes that it owns.

The application for search warrants was directed against video tape outlets which
allegedly were engaged in the unauthorized sale and renting out of copyrighted films
belonging to the petitioner pursuant to P.D. 49.

The essence of a copyright infringement is the similarity or at least substantial

similarity of the purported pirated works to the copyrighted work. Hence, the
applicant must present to the court the copyrighted films to compare them with the
purchased evidence of the video tapes allegedly pirated to determine whether the
latter is an unauthorized reproduction of the former. This linkage of the copyrighted
films to the pirated films must be established to satisfy the requirements of probable
cause. Mere allegations as to the existence of the copyrighted films cannot serve as
basis for the issuance of a search warrant.

7
This ruling was qualified in the later case of Columbia Pictures, Inc. v. Court of Appeals   in
which it was held:
In fine, the supposed pronunciamento in said case regarding the necessity for the
presentation of the master tapes of the copyrighted films for the validity of search
warrants should at most be understood to merely serve as a guidepost in
determining the existence of probable cause in copyright infringement cases where
there is doubt as to the true nexus between the master tape and the printed copies.
An objective and careful reading of the decision in said case could lead to no other
conclusion than that said directive was hardly intended to be a sweeping and
8
inflexible requirement in all or similar copyright infringement cases. . . 
 In the case at bar during the preliminary investigation, petitioners and private
respondents presented written descriptions of the formats of their respective
televisions shows, on the basis of which the investigating prosecutor ruled:
As may [be] gleaned from the evidence on record, the substance of the television
productions complainant's "RHODA AND ME" and Zosa's "IT'S A DATE" is that two
matches are made between a male and a female, both single, and the two couples
are treated to a night or two of dining and/or dancing at the expense of the show. The
major concepts of both shows is the same. Any difference appear mere variations of
the major concepts.

That there is an infringement on the copyright of the show "RHODA AND ME" both in
content and in the execution of the video presentation are established because
respondent's "IT'S A DATE" is practically an exact copy of complainant's "RHODA
AND ME" because of substantial similarities as follows, to wit:

RHODA AND ME "IT'S A DATE"

Set 1 Set 1
a. Unmarried participant of one gender (searcher) a. same
appears on one side of a divider, while three (3)
unmarried participants of the other gender are on the
other side of the divider. This arrangement is done to
ensure that the searcher does not see the
searchees.
b. Searcher asks a question to be answered by each b. same
of the searchees. The purpose is to determine who
among the searchees is the most compatible with
the searcher.
c. Searcher speculates on the match to the c. same
searchee.
d. Selection is made by the use of compute (sic) d. Selection is based on the answer of the Searchees.
methods, or by the way questions are answered, or
similar methods.
Set 2 Set 2
Same as above with the genders of the searcher and same
9
searchees interchanged. 

Petitioners assert that the format of Rhoda and Me is a product of ingenuity and skill and is thus
entitled to copyright protection. It is their position that the presentation of a point-by-point comparison
of the formats of the two shows clearly demonstrates the nexus between the shows and hence
establishes the existence of probable cause for copyright infringement. Such being the case, they
did not have to produce the master tape.

10
 otherwise
To begin with the format of a show is not copyrightable. Section 2 of P.D. No. 49, 
known as the DECREE ON INTELLECTUAL PROPERTY, enumerates the
classes of work entitled to copyright protection, to wit:
Sec. 2. The rights granted by this Decree shall, from the moment of creation, subsist
with respect to any of the following classes of works:

(A) Books, including composite and cyclopedic works, manuscripts, directories, and
gazetteers:

(B) Periodicals, including pamphlets and newspapers;

(C) Lectures, sermons, addresses, dissertations prepared for oral delivery;

(D) Letters;

(E) Dramatic or dramatico-musical compositions; choreographic works and

entertainments in dumb shows, the acting form of which is fixed in writing or
otherwise;

(F) Musical compositions, with or without words;

(G) Works of drawing, painting, architecture, sculpture, engraving, lithography, and

other works of art; models or designs for works of art;

(H) Reproductions of a work of art;

(I) Original ornamental designs or models for articles of manufacture, whether or not
patentable, and other works of applied art;

(J) Maps, plans, sketches, and charts;

(K) Drawings or plastic works of a scientific or technical character;

(I) Photographic works and works produced by a process analogous to photography

lantern slides;

(M) Cinematographic works and works produced by a process analogous to

cinematography or any process for making audio-visual recordings;

(N) Computer programs;

(O) Prints, pictorial illustrations advertising copies, labels tags, and box wraps;

(P) Dramatizations, translations, adaptations, abridgements, arrangements and other

alterations of literary, musical or artistic works or of works of the Philippine
government as herein defined, which shall be protected as provided in Section 8 of
this Decree.

(Q) Collections of literary, scholarly, or artistic works or of works referred to in

Section 9 of this Decree which by reason of the selection and arrangement of their
contents constitute intellectual creations, the same to be protected as such in
accordance with Section 8 of this Decree.
 (R) Other literary, scholarly, scientific and artistic works.

This provision is substantially the same as §172 of the INTELLECTUAL PROPERTY CODE OF
11
PHILIPPINES (R.A. No. 8293).   The format or mechanics of a television show is not
included in the list of protected works in §2 of P.D. No. 49. For this reason, the
protection afforded by the law cannot be extended to cover them.
Copyright, in the strict sense of the term, is purely a statutory 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 statutory grant, the rights are only such as the statute confers,
and may be obtained and enjoyed only with respect to the subjects and by the
12
persons and on terms and conditions specified in the statute. 

Since . . . copyright in published works is purely a statutory

creation, a copyright may be obtained only for a work falling within
the statutory enumeration or description. 13

Regardless of the historical viewpoint, it is authoritatively settled in

the United States that there is no copyright except that which is
both created and secured by act of Congress . . . . . 14

P.D. No. 49, §2, in enumerating what are subject to copyright, refers to
finished works and not to concepts. The copyright does not extend to an idea,
procedure, process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described, explained,
illustrated, or embodied in such work. 15 Thus, the new INTELLECTUAL PROPERTY CODE OF THE
PHILIPPINES provides:

Sec. 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 text of a legislative, administrative or legal nature, as well
as any official translation thereof.

What then is the subject matter of petitioners' copyright? This Court is of the opinion that petitioner
BJPI's copyright covers audio-visual recordings of each episode of Rhoda and Me, as falling within
the class of works mentioned in P.D. 49, §2(M), to wit:

Cinematographic works and works produced by a process analogous to

cinematography or any process for making audio-visual recordings;

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 two shows.
Mere description by words of the general format of the two dating game shows is insufficient; the
presentation of the master videotape in evidence was indispensable to the determination of the
existence of probable cause. As aptly observed by respondent Secretary of Justice:

A television show includes more than mere words can describe because it involves a
whole spectrum of visuals and effects, video and audio, such that no similarity or
dissimilarity may be found by merely describing the general copyright/format of both
dating game shows.

WHEREFORE, the petition is hereby DISMISSED

SO ORDERED. 1âwphi1.nêt

Puno, Quisumbing and Buena, JJ., concur.

Bellosillo, J., took no part.

Footnotes

1 Petition, Annex A, p. 4; Rollo, p. 27..

2 Sangguniang Bayan of Batac, Ilocos Norte v. Albano, 260 SCRA 561 (1996)

3 Petition, Annex B, pp. 1-2; Rollo, pp. 28-29.

4 164 SCRA 655 (1988).

5 Petition, p. 17; Rollo, p. 18.

6 Id., at 663-664.

7 261 SCRA 144 (1996).

8 Id., 173.

9 Petition Annex "G"; Rollo, pp. 44-45.

10 Promulgated on November 14, 1972.

11 Effective on January 1, 1998.

Sec. 172. Literary and Artistic Works. — 172.1. Literary and artistic works,
hereinafter referred to as "works", are original intellectual creations in the literary and
artistic domain protected from the moment of their creation and shall include in
particular:

(a) Books, pamphlets, articles and other writings;

(b) Periodicals and newspapers;

(c) Lectures, sermons, addresses, dissertations prepared for oral delivery whether or
not reduced in writing or other material form;

(d) Letters;

(e) Dramatic or dramatico-musical compositions; choreographic works or

entertainment in dumb shows;

(f) Musical compositions, with or without words;

(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or

other works of art; models or designs for works of art;

(h) Original ornamental designs or models for articles of manufacture, whether or not
registrable as an industrial design and other works of applied art;

(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to
geography, topography, architecture or science;

(j) Drawings or plastic works of a scientific or technical character;

(k) Photographic works including works produced by a process analogous to

photography; lantern slides;

(l) Audiovisual works and cinematographic works and works produced by a process
analogous to cinematography or any process for making audio-visual recording;

(m) Pictorial illustrations and advertisements;

(n) Computer programs; and

(o) Other literary, scholarly, scientific and artistic works.

12 18 C.J.S. 161.

13 Id., at 165.

14 HORACE G. BALL, LAW OF COPYRIGHT AND LITERARY PROPERTY 45

(1944).

15 NEIL BOORSTYN, COPYRIGHT LAW 25 (1981).

16 Comment of Public Respondent, p. 9; Rollo, p. 152.