SYNOPSIS

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. In 1973, petitioner BJPI submitted to the National Library
an addendum to its certificate of copyright specifying the shows format and style
presentation.
In 1991, petitioner Francisco Joaquin, Jr., president of BJPI, saw on RPN 9 an
episode of Its a Date. He immediately protested the airing of the show through a
letter sent to Grabriel M. Zosa, president and general manager of IXL Productions,
Inc., the producer of Its a Date. Petitioner Joaquin informed respondent Zosa of a
copyright to Rhoda and Me and demanded that IXL discontinue airing Its a
Date. Respondent Zosa apologized to Joaquin, but continued airing the show.
Zosa also sought to register IXLs copyright to the first episode of Its a
Date for which a certificate of copyright was issued by the National Library on
August 14, 1991.
With these developments, petitioners herein filed a complaint against Zosa and
other RPN Channel 9 officers as a result of which an information for violation of
P.D. No. 49 was filed before the Regional Trial Court of Quezon City. Zosa appealed
to the Department of Justice. The Secretary of Justice reversed the prosecutors
findings and directed the dismissal of the case. Petitioner Joaquin filed a motion for
reconsideration, but it was denied by the Secretary of Justice.
Hence, this petition.
Both public and private respondents maintained 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 contended that BJPIs
copyright covers only a specific episode of Rhosa and Me and that the formats or
concepts of dating game shows were not covered by the copyright protection under
P.D: No. 49.
The Supreme Court ruled that BJPIs copyright covered audio-visual recordings of
every episode of Rhoda and Me, as falling within the class of works mentioned in P.D.
No. 49. The copyright, however, does not extend to the general concept or format of its
dating game show. Accordingly, by the very nature of the subject of petitioner BJPIs
copyright, the investigating prosecutor should have been given 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. The petition was therefore dismissed.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; AUTHORITY OF
THE STATE PROSECUTOR, SUBJECT TO THE CONTROL OF THE SECRETARY OF JUSTICE.
A preliminary investigation falls under the authority of the state prosecutor who is given by law the
power to direct and control criminal actions. He is, however, subject to the control of the Secretary of
 Justice. Thus, Rule 112, Sec. 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 within 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 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
procesutor 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.
2. COMMERCIAL LAW; INTELLECTUAL PROPERTY LAW; COPYRIGHT; CONSTRUED. 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 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.
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.... P.D. No. 49, Section
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. 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.
3. ID.; ID.; ID.; FORMAT OR MECHANICS OF A TELEVISION SHOW IS NOT INCLUDED IN THE LIST
OF PROTECTED WORKS. To begin with, the format of a show is not copyrightable. Section 2
of P.D. No. 49, otherwise known as the DECREE ON INTELLECTUAL PROPERTY, enumerates
the classes of work entitled to copyright protection, to wit: Section 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 newspaper. (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 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; (L) 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, adaptions,
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
Section 172 of the INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES (R.A. No.
8293). The format or mechanics of a television show is not included in the list of protected works in
Section 2 of P.D. No. 49. For this reason, the protection afforded by the law cannot be extended to
cover them.

APPEARANCES OF COUNSEL
Medel Macam del Rosario Collado Polines for petitioners.
Angelo Medina for F. Medina, Jr.
Atienza, Tabora, del Rosario Salvador for W. Esposo. Francisco L. Rosario, Jr. for
Casey Francisco.
De Borja Medialda Ata Bello Guevarra Serapio for G. Zosa.
SECOND DIVISION

[G.R. No. 108946. January 28, 1999]

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

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

DECISION
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 Joaquins 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 shows 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 Its 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 Its 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 Its 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 IXLs copyright to the first episode
of Its a Date for which it was issued by the National Library a certificate of copyright on 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 Prosecutors findings and directed him to move for the dismissal of the case
against private respondents. [1]
Petitioner Joaquin filed a motion for reconsideration, but his motion was 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 BJPIs 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 prosecutors 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 actions.[2] 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 within 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 presented in order to determine whether there was
probable cause for copyright infringement. They contend
that 20th Century Fox Film Corporation v. Court of Appeals,[4] 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 linkages between the copyrighted show Rhoda and Me and the infringing TV show Its
a Date.[5]
The case of 20th Century Fox Film Corporation involved raids conducted on various
videotape outlets allegedly 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 petitioners 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.

This ruling was qualified in the later case of Columbia Pictures, Inc. v. Court of Appeals[7] 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 pirated 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 inflexible requirement in all
or similar copyright infringement cases. . . .[8]

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 complainants RHODA AND ME and Zosas ITS 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
respondents ITS A DATE is practically an exact copy of complainants RHODA AND
ME because of substantial similarities as follows, to wit:

RHODA AND ME ITS A DATE

Set I Set I

a. Unmarried participant a. same of one gender (searcher) 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 b. same to be answered by each of the
searchees. The purpose is to determine who among the searchees is the
most compatible with the searcher.

c. Searcher speculates on the c. same

match to the searchee.

d. Selection is made by the d. Selection is

use of compute (sic) methods, based on the

or by the way questions are answer of the
answered, or similar methods. Searchees.

Set 2 Set 2

Same as above with the genders same

of the searcher and searchees

interchanged.[9]
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.
 To begin with, the format of a show is not copyrightable. Section 2 of P.D. No.
49, otherwise known as the DECREE ON INTELLECTUAL PROPERTY, enumerates the
[10]

classes of work entitled to copyright protection, to wit:

Section 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;

(L) 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 THE PHILIPPINES (R.A. No. 8293).[11] 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 persons, and on terms and conditions specified in the
statute.[12]

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 BJPIs 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 BJPIs 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.[16]

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.
Puno, Quisumbing, and Buena, JJ., concur.
Bellosillo, J., (Chairman), no part due to relation to one of the parties.