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CHAPTER 1: CONSTITUTIONAL ISSUES Constitution - A supreme law of the land where all other laws must conform - It is a municipal law that is only bound to its land - covers the following topics  Power of the State  Right of Individuals  Defines what the state is:  Territory  People bound by  Sovereignty  Government - it finds a balance between Power of the State and Right of Individuals Inherent Power of the State 1. Police Power – power to regulate with no compensation for general welfare, health or safety 2. Eminent Domain – power to take away private property for public use upon payment of just compensation 3. Taxation – it is the “life blood” of the government * Just Compensation can be based on:  Assessed value  Zonal Value  Fair Market Value (FMV) ARTICLE XVI: General Provisions The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives, or associations, wholly-owned and managed by such citizens. (page 1) MAIN IDEA: The Legal Environment of Mass Media Mass Media and Advertising is Different a. Mass Media is limited to TVC, PRINT, and RADIO  Plays a critical role in nation-building  Ownership and management is 100% Filipino  It is a gate keeper of what is communicated to the masses. Not all information should pass through those gates. The allegiance and loyalty to country is the primary reason for Filipinization Policies. Mass media plays a critical role in nation building since it is a source of news, information, ideas, and ideals. Filipinization of ideas projected through mass media is ensured when left in the hands of Filipino. 

SEC 11 – The congress shall regulate or prohibit monopolies in commercial mass media when public interest so requires. No Combination in restrain of trade or unfair competition therein shall be allowed. (page 2)  No single company has controlling interest in two traditional forms of tri-media comprising of TVC, PRINT, and RADIO. Ex. ABS-CBN owns television and radio but has no direct interest in print such as a newspaper company There is a conscious effort to maintain competition The sense of balance in the market place can only be achieved under a regime of healthy and fair competition. SEC 11 – The advertising industry is impressed with public interest, and shall be regulated by the law for the protection of consumers and the promotion of general welfare.  Advertising is a property in the form of speech that uses mass media to communicate a product / advocacy / idea for the intent to sell and persuade a target audience  Advertising is a form of speech this it is PROTECTED (Commercial Speech)  Advertising has the intent to sell rather than to express thus it is regulated. (Police Power) Advertising may be regulated through POLICE POWER or EMINENT DOMAIN. SEC 11 – Only Filipino citizen or corporations or associations at least seventy per centum (70%) of capital of which is owned by such citizen shall be allowed to engage in advertising industry. (page 2) Advertising is less restrictive in terms of ownership. Ownership: 70/30 profit sharing 70% - Filipino 30% - Foreigners To protect their interest, foreigners are allowed ownership over companies created to sell their product (limited ownership)  Created opportunities to transfer technology from foreign shores to this country where innovation on advertising are introduced. 

SEC 11 – The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in capital thereof, and shall all the executive and managing officers of such entities must be citizens of the Philippines. (page 2)  With respect to management, foreigners are prohibited from taking an executive or managing officer position a. Mass Media Management = 100% Filipino b. Advertising Management = 100% Filipino

Executive and managing positions are placed entirely in the hands of Filipinos to assure that content and appeal of the advertisement is strictly Filipino. Standards have to be measured according to the national or Filipino psyche.

RULING: The ordinance is deemed invalid due to the reason that Fajardo's land is useless because of the ordinance passed. He cannot use his private property therefor the government is exercising the power of eminent domain and should be given just compensation.

ARTICLE III – Bill of Rights (Sec. 1 and 9) Sec 1 – No person shall be deprived of life, liberty, or property without due process nor shall any person be denied equal protection of the law. (page 6)  Talks about POLICE POWER The State can exercise police power (to regulated, with no just compensation) BUT due process must be given

ARTICLE III – Freedom of Speech (Sec. 4) Sec 4 – No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peacefully assemble and petition the government for redress of grievances. (page 10)  Speech is an encompassing term that includes every possible form of expression (Verbal and Non Verbal) - Freedom of speech cannot be unfretted. Though it is subject to regulations (usually through police power) - The moment you express through actions, you are responsible.

CASE: Churchill and Trait vs. Rafferty (BIR) STORY: Churchill placed a billboard that covers the view of nature and compels attention because of its location. Churchill's billboard is placed in his private party. The government characterized it as offensive to the sight

 ISSUE: Whether the billboard may be removed without just compensation to the owners RULING: The billboard was removed without just compensation through police power although it is a private property the government's main concern is the general welfare of the people and the billboard was a distraction and obstructive. Equal Protection General Rule: Equal to everyone Exemptions: a. More protection over the less fortunate b. Retail Trade is only for Filipinos c. Law only applies to one (1) class Ex. Only Filipinos can own land 60% must be Filipino Sec 9 – Private property shall not be taken for public use without just compensation (page 6)  Talks about EMINENT DOMAIN  The state has the power to exercise eminent domain (take away with compensation)  Right to take away/ expropriate is only valid if: i. For public use ii. There is just compensation CASE: People vs. Fajardo STORY: Fajardo old house was destroyed due to a typhoon. He owns this parcel of land and on the process of requesting a permit he was denied because the building will destroy the view of the public plaza. He still preceded with the building of his house in his parcel of land. The governments wants the house destroyed because of the ordinance. ISSUE: Whether the ordinance is valid.

Two Types of Speech 1. Protected a. Core Speech  Non Commercial  General Rule: it cannot be interfered with  Underlying motive is to EXPRESS b. Commercial Speech  General Rule: it can be regulated  Underlying motive is for PROFIT 2. Unprotected a. Libel - it must be  Public  Malicious  Imputation of (can be real or imaginary) i. Crime ii. Vice iii. Defect  Any act of i. Omission ii. Condition iii. Status iv. Circumstances  Causes the following i. Dishonor ii. Discredit iii. Contempt  Blacken the memory of one who is dead  THE PERSON SHOULD BE IDENTIFIABLE Anything online is public (even private messages) Only the person who has been caused damaged to can sue.

b.

Obscenity  It looks at an average person and apply contemporary standards in order to judge if the object in question is obscene  Work taken as a while lacks serious literary artistic, political, or scientific value.

National Press Club vs. Comelec - It is not allowed to give free of charge print space or air time for candidates. All candidates should depend on comelec for air time. If candidate is a contributor, columnist, commentator or announcer on board he/she should take a leave of absence during candidacy period. Telecommunications & Broadcast Attorneys of the Phils Inc. vs. Comelec Laws Concerned: 1.

2.

Comelec time for radio and TV shall be given to the government without just compensation so that they may allocate equally and impartially among the candidates within the area of coverage. Comelec space for print (newspaper/magazines) shall be given to the government with just compensation. Said space is allocated free of charge equally and impartially to the candidates.

*Radio and TV broadcasting companies, which are given franchises, do not own the airwaves and frequencies. They only transmit broadcast and images and therefore, it is a public party; police power can be exercised, unlike Print, which is a private property and power of eminent domain should be exercised. Political Advertisement - may take the form of spots, guestings, in TV shows and radio programs, love or taped announcements, teasers, and other forms of advertising messages or announcements used by commercial advertisers. "Election period commences 90 days before the day of election date and 30 days thereafter. Campaign period is variable but within the 90 days before the election date" "Candidates are only considered candidates during the start of campaign period"

CASE: Adiong vs. Comelec STORY: Adiong challenge the comelec resolution that it is not allowed to use campaign decals and stickers on mobile units ISSUE: Where the prohibition as applying to private motor vehicles is a valid regulation RULING: Adiong was granted to the right to distribute campaign decals and stickers. For her mobile units is a private property and prohibiting it is a depriving them with free speech. People who agree to put the stickers in their mobile units is merely is an expression or a statement. CASE: Mutuc vs. Comelec STORY: Comelec issued a ruling that the use of a taped jingle on mobile units equipped with sound systems and loud speakers for campaign purposes is not allowed ISSUE: Whether the prohibition amen e use of a taped jingle is valid? RULING: Mutuc was granted the right to express his views as a political candidate because it is hard to repeat his views over and over again in different places that is why it is only appropriate to record it in a jingle or something. Prohibitions of Speech General Rule: State cannot exercise Prior Restraint or Subsequent Punishment 1. Prior Restraint  Has not yet been expressed  Before publication/ dissemination Exemptions a. During war b. During rebellion c. Classified Censorship (MTCRB)  This can be reviewed by a higher body. 2. Subsequent Punishment  Allowed to do/show but there is immediate punishment after. Exemptions a. Dangerous Tendency Rule (a tendency)  If speech is expressed = possible evil b. Clear and Present Danger  If speech is expressed = sure evil  Use proximity and degree test c. Balancing of Interests  Individual freedom vs public interest CASE: Soriano vs Laguardia STORY: Soriano made a remark over Sanoval on TV. Sandoval sent a complaint to Soriano. MTRCB suspended “Dating Daan” for 3 months and Soriano for 20 days.

CHAPTER 2: SOURCES OF OBLIGATION Elements and Requisites of a Contract 1. Consent – must be freely given 2. Object – must be clear and determinate (within the commerce of men) 3. Cause – reason for the contract Five (5) Sources of Obligation 1. Law 2. Contract 3. Quasi – Contract 4. Delict / Crime 5. Quasi Delict NO. 1: Law – the law should be adhere to; otherwise liability for such violation will arise. Advertising under the Law  RA 7658 - Permits are needed for children to appear on ads - Children below 15 shall not be employed except when essential - Must have parents permission / legal guardian - Agreement of the child - Agreement of DOLE & DSWD  Animal Welfare Act of 1998 - Unlawful to torture animals / neglect to provide care, sustenance, or shelter, or maltreat them  Omnibus Election Code - Registration with Comelec for ads for endorsing / opposing candidacy of any person  Resolution 7858 - Digital Media Advertisement  Section 64 of MORPHE - For school ads / announcement of degree program which are offered under permit status - Required the inclusion of “As per commission of higher education permit number…”  EO51 (Milk Code 1986) - Nutrition and health claims will not be permitted for breastmilk substitute. NO. 2: Contract – meeting of minds; involving a valid object. It is perfect by an offer duly accepted. Characteristics: a. Liberty/Freedom to enter into contract b. Obligatory – law between parties c. Mutual – Binding between parties d. Consensual – there has to be consent for both parties NO. 3: Quasi – Contract

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If something is unduly received, there is an obligation to return it. Based on the sense of justice and fairness Quasi means seeming

NO. 4: Delict / Crime - Punishable by imprisonment - Violation of provision of the revised Penal Code and Special Laws that especially provide sanctions penal in character - Action / Omission - There is intent / motive NO.5: Quasi Delict - Fault through negligence - No pre-existing contract - Need to pay for damages Essential Requisites of Quasi-Delict 1. Act or Omission constituting fault or negligence 2. Damage Caused by said act or omission 3. Casual Relation between the damage and the act or omission 4. Private Person 5. Public Official EXAMPLE OF QUASI DELICT: Malicious publication (not constitute a criminal offence for libel, but it shall give rise to civil action for violation of right to privacy) Type of Damages 1. Actual or Compensatory 2. Moral – lack of sleep, emotional distress, trauma, etc. 3. Nominal 4. Temperate or Moderate 5. Liquidated – agreed upon amount 6. Exemplary or Corrective – impose damages to show to public. CHAPTER 3: INTELLECTUAL PROPERTY RIGHT Intellectual Property -

A body of laws that deal with the creations of the mind Not a natural law

Two (2) Types of Intellectual Property 1. Copyright 2. Trade Mark NO. 1 COPYRIGHT: Principles of Copyright 1. Literary & Artistic Work - Literary – written work - Artistic – appeals to the senses 2. Original Works 1. The use of one’s own independent initiative and effort - Moment of Creation

1. 2. 1. -

Protected at the moment of creation No need to register / immediately actionable Irrespective to Form/Content/Quality/Purpose it is protected Should be tangible Should be outside the head Expression is protected  Ideas are not protected

LIMITATIONS OF COPYRIGHT  When copyright term ends  Term of Protection: 50 years after authors death  Non copyrightable works  No violation of copyright: - Private performance, free / religious / charitable - Quotations if done properly (quoting) - Reporting, reproduce for broadcasting - Reporting Current Events - Educational Purpose - Ephemeral Recording (not intentionally) - Use of government / national library / educational / scientific institution - Public display of original work if sold / given away / transferred - Legal purpose * As long as owners right to earn is not undermined. LIMITATIONS ON COPYRIGHT a. Fair Use Doctrine - Acts of Fair Use – ex. recitation / performance done in private - Types of Acts of Fair Use a. Criticism b. News c. Teaching d. Research - Guidelines of Fair Use: a. Purpose & Character of Use b. Nature of work (it is possible that it isn’t copyrightable) c. Amount and sustainability of portion used (quantity and quality) d. Effects of use upon the owner of the copyright DERIVATIVE WORKS a. Arise from original work b. Two (2) Types of Work: a. Original b. Derivative c. Two Protections Protections are separate NON COPYRIGHTABLE / UNPROTECTED WORKS General Rule: You may copy, unprotected work Types of Non Copyrightable / Unprotected Works: a. Ideas / procedure / system / method or operations / concept / principle / discovery / mere data

b. c. d. e. f.

News of the Day Press Information Official text or Legislative work Libel Obscenity

COPYRIGHT OWNERSHIP a. Belongs to owner – natural person b. Joint Authorship – co-ownership unless distinguishable c. Commissioned – only ownership is transferred d. Employee – owns copyright if work is done through own efforts & is not part of his/her work e. Employer – owns copyright; process matters f. Audio Visual – owned by producer author of scenario, composer, film director, author of adaptation g. Letter – receiver is the owner; sender owns the copyright *Copyright is a bundle of rights (Term of Protection is 50 years after authors death) COPYRIGHT BUNDLE OF RIGHTS: A) ECONOMIC RIGHTS (Can be transferred separately) - Reproduce (whole or substantial portion) GENERAL RULE: You cannot just copy anything. Only the creator has the exclusive right to reproduce the work. EXCEPTION: Consent - Transform EXAMPLE: You cannot just make a book into a movie. You need consent. *Derivative works need consent. - First Transfer – sell ownership, not copyright First Decision to Sell. Initial Right to Sell: if buyer decides to sell or rip it, then creator has no more right over it. - Rental – commercial use needs consent. Private use does not. (Pertains to audio visuals. Not Books.) - Public Display - Public Performance Example of common public performance practices that all need consent:  Music playing in restaurants  Television turned on really loud in restaurant  Singing a song in The Voice - Other Communication to the Public * General Rule is you need CONSENT for each and every action under economic rights *All rights under economic rights are separate from one another meaning it is possible to have the consent to reproduce but not consent to display in public.

TRADEMARK VS. BRAND B) MORAL RIGHTS (Personal Right. Cannot be transferred) - Attribution – still has the right to have the work attributed to him even if ownership of copyright has already been transferred EXAMPLE: Reason why companies don’t need to attribute the works done by its employees is because the copyright is owned by the employer Especially when it works is done within the job scope of the employee. Alteration – author may change the work prior to publication - Respect and Integrity – cannot alter work in a sense that it will affect reputation of creator - Reject False Attribution – author may reject false attributions * Only creators can exercise moral right *Creators can wave/refuse to use moral right but it needs to be in writing. -

C) RIGHT OF RESALE (Droit de Scute) - Sale / lease of original work - Get 5% subsequent sale - Even their heirs have the right to resale. D) RIGHT ON WORKS OF ARCHITECTURE - Right to erect building (first time only) i. Substantial part or whole – original form or any form recognizably derived from the original ii. Does not include reconstruction or rehabilitation in the same style as the original - Right to Blueprint is different - creation of the building is separate from the blueprint NO. 2 TRADEMARK Requisites of a trademark: 1. Should be visible - a sign / symbol 2. Capable of distinguishing from other (distinctive) stamp containers (ex. Shape of coke bottle) *Scents aren’t a mark Functions of a trademark: 1. Should be able to identify a product or service (Purpose) 2. It is a source identifier 3. Marketing Tool (the start of developing brand) 4. Valuable Asset

1. 2.

Trademark – is just a visible sign that distinguishes Brand – adds qualities and traits that becomes own-able to the trademark

USE OF MARKS 1. Financing – you can use the mark to get a loan 2. Licensing and Franchising – allow others to use the mark TYPE OF MARKS 1. Strong Mark (Registerable) a. Inherently Distinctive – doesn’t relate to the product (ex. Xerox & Kodak) b. Arbitrary/Fanciful – has meaning but does not relate to the product (ex. Apple & Window) c. Suggestive Marks – suggests something about the product and service but does not tell what that product or service is (ex. Close Up) d. 2. Weak Mark (Non Registerable) a. Immoral, Deceptive, and Scandalous Marks – causes damage to others (ex. Vatican Night Club) b. Any Symbol of a Country c. Living Individual (Portrait, Siganture, or Name) d. Identical Mark w/ same goods  Company A: Sarmi w/ nails polish  Company B: Sarmi nal Polish e. Identical Mark w/ related goods – if different with goods then it is allowed  Company A: Sarmi with nail polish  Company B: Sarmi nail cutter f. Confusingly Similar g. Internationally well known marks  Requisites for “well known” mark: Knowledge of the relevant sector is not equivalent to the knowledge of public at large h. Misleading i. Generic Mark  Refers to the class  Example: Sam’s Cofee Shop (the coffee shop cannot be registered)  Example: BAYO – a dialect for clothes j. Customary or Everyday Language  Example: Tasty k. Descriptive to Qualities of the Product (Explicit)  Example: a car brand called FAST. l. Shapes cannot be the same as the product

Example: product is ribbon then logo is ribbon cannot be trademarked. m. Color alone cannot be trademarked  Example: Red Mug = Nestcafe 

DISTINCTIVE SECONDARY MEANING  Descriptive becoming distinctive  Example: Shoemart is a place to buy shoes is now known as SM.  How the owner related the product  There is always an “owner” TYPES OF TRADE MARK Strong Trademark Weak Trademark a. Inherently Distinctive a. Generic b. Arbitrary and Fanciful b. Descriptive c. Suggestive c. Common STRONG MARK A) Inherently Distinctive – doesn’t relate to the product but has a strong recall (ex. Xerox and Kodak) B) Arbitrary / Fanciful – has meaning but doesn’t relate to the class of the product (ex. Apple and Windows) C) Suggestive – suggests something about the product or service but does not tell what that product or service is (ex. Close Up) WEAK MARKS A) Generic – the name refers to the class (ex. Sam’s Coffee Shop where “Coffee Shop” cannot be registered on its own) B) Descriptive – refers to the qualities of the product (ex. Car shop called FAST) C) Common – language is used customary and part of everyday language (ex. Bread called Tasty) TRADEMARK  Needs to be registered (it is not protected in the moment of creation)  First to file (good faith) To Register a Trademark 1 Conduct a trademark search – search if your proposed trademark has any similar trademark 2 File a registration (Sec. 124) – color claim 3 File in IPOPHL – pass through formality exam 4 Substantive Exam – IPOPHL tries to question the mark 5 Publication - done online - shown to entire world - Entire world is given 30 days to object 6 7

Registration May Cancel w/in 5 years