INTELLECTUAL PROPERTY PH ILIPPINES

VIBAl PUBLISHING HOUSE, lNC., } IPV Case No. 10-2006-00022 ESTELITA B. CAPINA, and } Case filed on: MENARDO O. ANDA, }

Complainants, } For: Violation of the Intellectual Property } Code with application for Preliminary } Injunction.

- versus ­ } } }

SUNSHINE INTERLINKS PUBLISHING } HOUSE INCORPORATED, }

x Respondent }

x Decision No. 2009 - L

DECISION

For decision is the Complaint filed by VIBAL Publishing House, Inc., a corporation organized and existing under Philippine laws, Estelita B. Capina and Menardo O. Anda, both of legal ages, with address at 1253 G. Araneta Avenue, Quezon City against Sunshine Interlinks Publishing House Incorporated, a corporation organized and existing under Philippine laws, with address at No. 236 Tomas Morato Street, Brgy South Triangle, Quezon City.

Complainants made the following allegations in their complaint, to wit:

"1 . Complainants VIBAL PUBLISHING HOUSE, INC., is a corporation organized and existing under Philippine Laws with principal address at No. 1253 G. Araneta Avenue, Quezon City and duly represented in this complaint by two of its authors and editors, Complainants ESTELITA B. CAPINA who is of legal age, Filipino, and MENARDO O. ANDA, who is of legal age, Filipino and with the same address as that of Complainant Corporation. Orders, notices and other processes of this Honorable Office may be served to Complainants in the aforementioned address;

"2. Respondent SUNSHINE INTERLINKS PUBLISHING HOUSE, INCORPORATED is a corporation organiZed and existing under Philippine Laws with business address at No. 236 Tomas Morato Street, Barangay South Triangle, Quezon City; where summons and other processes of this Honorable Office may be served;

"3. That the Complainants are the legal copyright owners of the books entitled "ONE COUNRTY, ONE PEOPLE Gr. 1, 2, 3, 4, 5 and 6", hereinafter called Original Books. Photocopy of the Certificate of Copyright Registration and Deposit issued by National Commission for Culture and the Arts of the National Library for "ONE COUNTRY, ONEY(; PEOPLE Gr. 1, 2,3,4,5 and 6" are hereto attached as Annexes "A" to "A-5" respectively;

Republic of the Philippines 11\.T'TVI I V£"TI T 4.1 DnADvn.....v AVDlr'lD

"4. That recently Complainants discovered that Respondent has written illustrated, printed, published, sold and distributed the books entitled "PHILIPPINES OUR BELOVED COUNTRY GR, 1, 2, 3, 4, 5 and 6" hereinafter referred to as the Copied Versions, which have several and substantial similarities from the Original Books, in complete infringement of the copyrights of the Complainants, and in gross violation of the Intellectual Property Code.

"5. That Respondent in numerous instances has substantially copied the examples, illustrations, drawings, treatment arrangements, and manner of presentations in the Original Books as shown in the Comparative Study made by the Complainants on these books indicating the specific pages where examples, illustrations, drawings, treatment and presentations in the Copied Versions were substantially lifted, taken out, and copied by Respondent from the Original Books. Copy of the Comparative Study made on Original Books and the Copied Versions is hereto attached as Annex "B". Photocopy of the corresponding pages of the Original Books and Copied Versions showing the substantial similarities referred to in the Comparative Study are hereto attached as Annexes "C" to "C­11";

"6. That Respondent has a complete access to the works of Complainants since the Original Books have long been published, sold and circulated in various school.

"7. That demands were made upon Respondent to cease and desist from printing, publishing, selling and distributing the Copied Version, and to withdraw the same from all bookstores, schools and in public circulation, but the same proved to be in vain. Photocopy of the Demand Letter personally served to Respondent is hereto attached as Annex "0";

"8. That as a result of infringement and unlawful act of the Respondent, the sale of the Original Books is seriously affected, its value has substantially diminished and the labor of Complainants Estelita B. Capiria and Menardo O. Anda are substantially and to an injurious extent appropriated, for which Complainants suffered actual damages in the amount of not less than P 200,000.00;

"g. That in order to protect their lawful rights and interest, Complainants were constrained to engage the services of a legal counsel and institute the instant complaint for which Respondent must be held liable;

Respondent raised the following negative and/or affirmative defenses in its Answer filed on February 27. 2007, to wit:

"1 The Respondent hereby repleads and incorporate the above-paragraph ~JP1 as they may be applicable and necessary herein: I I/'1" I

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"2. The Respondent is engaged in the printing, publication, sale and distribution of books. In particular, it is the publisher of the "Philippine Our Beloved Country Grades 1, 2, 3, 4, 5 and 6". Copies of the said books are attached hereto and made integral part hereof as Annexes "1" to "6".

"3. While the Respondent is a relatively new player in the industry , it has always dealt with the other major players in fair, honest and decent manner. It prides itself in publishing high quality and carefully researched and written books in order to bolster the education of the youth. Furthermore, the books published by the Respondent complies with the "2002 Revised Basic Education Curriculum" (2002 RBEC) prescribed by the Department of Education Culture and Sports (DECS). A copy of the 2002 RBEC is attached hereto and made an integral part hereof as Annex "7".

"4. Sometime in 2006, the Respondent received a demand letter from the Complainant who declared therein that its books were copied and asked that the publication of the said books be stopped . It should be noted, however, that not all the books in the "Philippines Our Beloved Country" series was included in the said demand letter.

"5. When the demand letter was received by the Respondent, it immediately reviewed the entire contents of its "Philippines Our Beloved Country" series. When it discovered that there were some far fetched similarities, despite the heavy financial loss that it would incur on account of the number of copies already produced , changes were still made. Copies of the revised "Philippines Our Beloved Country Grade 1-6" are attached hereto and made an integral parts hereof as Annexes "8" to "13".

"6. The act of the respondent in revising the books in question is not an admission that the same were copied from the books published by the complainant. The same were based on the 2002 RBEC which prescribed the method and style by which the books under the "Makabayan" series are to be presented.

'7. The language used and the illustrations are also dependent upon the guidelines prescribed by the 2002 RBEC, so if there are nay similarities that were detected by the complainant, the same should not be attributed to the respondent as it merely complied with the guidelines to which it is limited.

"8. The allegations that the infringement of copyright that was perpetrated by the Respondent resulted in substantial loss of income generated by the sales of their books is not the fault of the Respondent. A careful glance at the book buyers and schools is to prescribe the newest and most up tf; date if not the best books in the market in order to ensure the best for the fI/~ J~

students. ;(Y. ~

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After hearing on the application for preliminary injunction, the Bureau issued Order No. 2007-72 dated May 9,2007 denying opposer's application for injunctive relief.

The Pre-trial of the case was initially set on 29 May 2007. For failure of the respondent to successively appear at the pre-trial conference and submit pre-trial brief, the respondent was declared as in default in Order No. 2007-154 dated November 20, 2007. Respondent filed an Omnibus Motion to Lift Order of Default and Motion to Annul Subsequent Proceeding thereto with Motion to Admit Attached pre-trial brief which was denied for lack of merit in Resolution No. 2009-03 dated April 29, 2009. A Motion for Reconsideration of the Bureau's Resolution was likewise denied in Resolution No. 2009-02 dated September 30, 2009.

During ex-parte trial, complainant adopted evidence offered in the hearing for the application of a writ of preliminary injunction which consist of Exhibits "An to "I" inclusive of sub­markings, to wit: Secretary's Certificate (Exhibit "A"); Certificate of Copyright Registrations and Deposit (Exhibit "B"); Title of Books (Exhibit "C"); Dates when copyright were issued (Exhibit "D"); Comparative study of complainant and respondent's books (Exhibit "E"); Document entitled "Schools that adopted Sunshine Interlinks Publishing House Inc.'s Philippines Our Beloved Country (Exhibit "F") Affidavit of Estelita Capina (Exhibit "G"); Pages of complainant and respondent's books (Exhibit "H") and Tabulation of similarities between complainant and respondent's books (Exhibit "I").

The issue is whether the respondent is guilty of copyright infringement. Particularly, whether the respondent copied the selection, examples, illustrations, drawings, treatment, arrangement and manner of presentation made in the books "One Country, One People GR. 1,2,3,4, 5 and 6 in its books, "Philippines Our Beloved Country Gr. 1,2,3,4,5 and 6".

Section 172, Republic Act 8293, otherwise known as the Intellectual Property Code provides:

"Section 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 creation and shall include in particular:

(a) books, pamphlets, articles and other writings." x x x"

Vicente B. Amador in his book Copyright Under the Intellectual Property Code, p. 86, 1998, quotes "WIPO - Guide to the Berne Convention", pp. 11-13, it states :

"Section 172.1 (a) protects books, pamphlets, articles and other writings. Since the content of the work makes no difference to the protection, this is , without doubt, the biggest category , if not in numbers, by variety, novels, news, poems, recitations, short stories, whether fictional or not, pamphlets, treaties or handbooks on philosophy, history and all other natural or physical science, almanacs, year books, programmes, guides, etc. irrespective of their contents, their length, their purpose entertainment, education, information, discussion, advertisement, propaganda, etc., and their form, manuscript, typescript or printing."

Complainants, as authors and publisher of the textbooks "One Country , One People" Gr. 1, 2, 3, 4, 5 and 6 allegedly discovered several substantial similarities with the books written ,

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published and sold by respondents entitled "Philippines Our Beloved Country Gr 1, 2, 3, 4, 5 and 6". Complainants particularly pin pointed pages and lifted excerpts from their textbooks in tabular summary form (Exhibit "E") which we have compared and validated through perusal of photocopies of pages from the "One Country, One People Series" and :Philippines Our Beloved Country" (Exhibit "H"). The tabular comparison (Exhibit 'E") is reproduced hereunder.

- ---- --,--------------, Sunshine Interlinks Publishing House

Incorporated "Our Beloved Country"

©2005

Grade 1

p. 22 Cognitive Activity, Item B

p. 25 Psychomotor

pp.44-54

pp 61-76

p. 97-98

p.219

p. 220

p. 229 Let Us Remember

Vibal PUblishing House, Inc., "One Country, One People"

©2002

p. 106 Summary

p. 109 Things I Can Do

pp. 14-27 Except for Nayong Pilipino, all the items and description are the same with Philippines: Our Beloved Country"

pp 38-51; the most glaring similarity is the write up on the mountains in pp 42-43.

pp. 72-73

p. 229 Same expression

p.231

p. 240 same entries.

Grade 2 p. 16 illustration of Sajid Bulig p. 170 Sajid Bulig illustration

under heading Bravery in OCOP

p. 25 Kulturang Pilipino

p. 94 Water Resources p. 40 Water Resources - The jAA~ Our countrv is rich in water Philiooines is rich in water1'\ ~

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resources. Our water resources supply us with different seafoods like fish, shrimps, squids, crabs, clams and mussels. They are also I good sources of shells and other marine products.

...Rare sea creatures like the sea cow or dugong are also found in our waters.

p. 100 Item No.2: Stop illegal logging to prevent soil erosions.

p. 122 Telling directions. The illustration of the girl in telling directions.

p. 124 Symbols Used in Maps Has the same map presentation as in OCOP.

p. 218 Efren "Bata" Reyes Efren "Bata" Reyes is the famous Filipino billiard artist also known as 'The Magician." He is called "Bata" because he was young when he started working at the Lucky 13 Billiard Hall in Sta. Cruz, Manila. Bata has won in many tournaments in and out of the country. He has made the Philippines known in the game of billiards all over the world

resources; These water resources are sources of fish, shrimps, clams, seashells, crabs and seaweeds. They are also sources of other important things like pearls, rare animals and plants.

The sea turtle and sea cow or dugong are rare animals found in our seas.

p. 50 Stop illegal logging. Trees prevent soil erosions.

Both text and illustration the same with "Philippines: Our Beloved Country".

p. 95 The illustration of the boy in telling the directions. Same position as in the "Philippines: Our Beloved Country".

p. 102 Symbols used on Maps "Philippines: Our Beloved Country" has the same illustration.

p. 238 Efren "Bata" Reyes Efren Reyes uses the

nickname "Bata" because he was still a young boy when he worked as a watcher at the Lucky 13 Billiard Hall in Sta. Cruz, Manila. He is famous for his unusual style hence he is called "The Magician". He has been the champion in almost all the prestigious billiard tournament all over the world.

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This textbook has same write-ups on the following notable Filipinos:

pp 219-221 - Elma Muros­Posadas, Pia Adelle Reyes; Lea Salonga; Cecil Licad; Regino "Boboy" Fallera; Eliong Kalantas; Catalino Estrada Jr.

Grade 3

Preface 1st Paragraph

2nd Paragraph

p. 2 Illustration of girl showing the map

p. 18 Use map and legend

pp. 19-22

p. 25 Road map

Sequencing of examples given in pp. 36,40,86,95, 105­108,108-111

1st p. 48 Example weather in and 2nd paragraphs

p. 125 Exercise in "Let's Do These, Cognitive A

Grade 4 Illustration of globe in pp. 4, 21

pp.21-23

p. 34 Map Symbols

p. 239 Elma Muros-Posadas; Pia Adelle Reyes

pp. 240-241 - Eliong Kalantas; Catalino Estrada Jr. , Regino "Boboy" Fallera

See similarity in 4th paragraph of Preface Same text as in 3rd paragraph of Preface

See similarity in p. 3

See similarity in p. 18

See pp. 20-23

See p. 25; Same road map but with different names

See similarities in pp. 32, 36, 78, 95, 99-100, 102-104

See last paragraph of p. 47

See similarities in p. 129 Things I Learned.

Same as in pp. 6 and 18

See similarities in pp. 16-18

See similarities in p. 34

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Map presentations in pp 135, 136, 138, 142

Illustrations in pp. 154-157. 167, 169,199,274

Text on CCP in p. 250

Grade 5 p. 14 The leader's wealth was

measured by the number of slaves and the amount and quality of gold he possessed . The datu and his wife wore different kinds of jewelries made from gold.

See similarities in pp. 119, 121, 123 and 130

See similarities in pp. 153-157, 167.170,196,234

See similarities in p. 245

p. 14 The datu's' wealth was measured not only by the number of his slaves but by the amount and quality of gold he possessed.

p.16 Associated with P. 22 due to the women's ability motherhood was the task of women in planting and harvesting. The ancient Filipinos believed that mothers have green thumbs and would bring much harvest if they would tend the farm.

pp. 29-32 Spread of Islam in the pp. Philippines

p. 43 Majority of our early p. ancestors owned the land they tilled. Some just worked for a datu, a chieftain or a a member of the maharlika. Those lands were either inherited or sold to the farmer. For lands owned by the barangay or oublic lands. a farmer oaid

to bear a child, it is their task to do the planting and harvesting in the fields. This was based on the belief that the mothers have green thumbs and would bring much produce in the field if they were made to harvest. For these people, these tasks were analogous to giving birth to a baby.

26-30 Islam in the Philippines. The content in Philippines: Our Beloved Country is a digest form of the OCOP text.

10 Most of the early Filipinos owned the lands they tilled. The others juts worked on lands owned by the datu or of the rich families. The mountains were owned by the barangays as well as the hills, creeks, forests and plains within their territories. Others were inherited bv th~~

annual fee in the form of tax to the datu or chief.

p. 87 As Graciano Lopez Jaena noted, "The education promoted by the Spaniards had no value, as far as the lives of the Filipino were concerned. It was fortunate that the Filipinos learned to read and write, count and pray, but they did not learn how to develop their own self and the society. They were not taught how to love and appreciate their own culture, so much so, to value the heritage of their ancestors."

p. 112 Tabular presentation of

children or relatives. If a farmer used the land that belonged to the barangay, he paid a yearly tax to the datu or their chief.

p. 80 According to Graciano Lopez Jaena, the education propagated by the Spaniards in the Philippines had no value, as far as the lives of the Filipino were concerned. These Filipinos were lucky to have learned to read and write in Spanish but they did not learn the skills necessary for the development of one's self and community. The Filipino youths were not given the opportunity to value their own culture.

pp. 97-98 Filipino Revolts the Filipino Revolts Against l Against Spain the Spaniards Same tabular presentation

although the other book did not feature the outcome of the revolts

p. 147 Activity C Let's Do These p. 129 Item 5 Check Yourself C. Differentiate the military 5. Compare the military and the civil government government with the civil established by the government established by Americans the Americans. ------ ---- -+-- - - --- - - - - -{

Grade 6

p. 9 The faith of the p. 59 The Pangasineses' Pangasinenses is best Catholic faith is best expressed in their devotion expressed in their devotion to our lady of the Most Holy to Our Lady of the Most Holy Rosary which is enshrined in Rosary which is enshrined in Manaoag Church. Manaoag Church.

D. 19 The Manavans still use D. 66 At Dresen!. the still use~

- - -

their old alphabet in writing. Their alphabet has a very complicated syllabication. The ambahan is the unique literature of the Mangyans, they inscribed it on bamboo tools, weapons and containers made of coconut shells through the use of a small knife called siyaw.

p. 21 The Tboli settlement are found within the lakes, namely Lake Sebu, Lake Lahit and Lake Siluton, Lake Sebu is the most economically important lake.

their old alphabet in writing which has a very complicated syllabication. The ambahan is a unique literature which they maintain by inscribing it on bamboos, tools, weapons and containers made out of coconut shell through the use of siyam or small knife.

p. 71 Three lakes are found within the Tboli settlements - Sebu, Siluton and Lahit. Of the three, Lake Sebu is the most important, both culturally and economically.

p. 133 As of May 2000, the p. 25 The Philippines has a total Philippines has a total forest forest area of 15,854,973 area of 15,854,973 hectares hectares (as of May 2000)....

Noticeably, there is similarity in the manner by which the sentences are formed and the ideas are expressed. There is identity of the data or content in the sentences. Complainant's Gr2 One Country, One People, page 40 reads:

"Water Resources - The Philippines is rich in water resources; These water resources are sources of fish, shrimps, clams, seashells, crabs and seaweeds. They are also sources of other important things like pearls, rare animals and plants.

The sea turtle and sea cow or dugong are rare animals found in our seas."

On the other hand, respondent's GR2 Our Beloved Country, page 94, reads:

"Our country is rich in water resources. Our water resources supply us with different seafoods like fish, shrimps, squids , crabs, clams and mussels. They are also good sources of shells and other marine products .

........Rare sea creatures like the sea cow or dugong are also found in our waters ."

In the GR 1 textbook, where the textbooks contained discussions on different land form;r;s complainant points out that the most glaring similarity is in the write up about mountains , it , J Ji reads: ~'lIP"

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(Complainant's One Country, One People, page 42)

MOUNTAIN

"A mountain is a very high land form. It is higher and bigger We have many mountains in the Philippines. Some of these mountains are Apo, Kitanglad , Pulag and Halcon. It is in the mountains where we can find thick forests. We get logs and wood from trees . We need wood for building houses and for making furnitures like table, chairs, beds and cabinets . They are mostly made out of wood."

(Respondent's Our Beloved Country, page 66)

"A mountain is a high land form bigger and higher than a hill. The Philippines has many mountains. Mt. Apo, Mt. Kitanglad, Mt. Pulag and Mt. Halcon are some of the mountains found in the Philippines. Thick forests are found in these mountains. We get woods and logs from trees in the mountains. Woods are used in building houses and making pieces of furniture. The tables, chairs, and cabinets are made of wood. We need these furnitures ."

It can be observed, that the sentences are stated differently, they contain the same nouns and adjectives. The sequencing of the thought is the same.

In discussing the beautiful sceneries and places found in the Philippines, there is not only similarity in theme but in the manner of expression of thoughts. We compared the write-up on the Hundred Islands, Taal Volcano and Mayon Volcano, from pages of the textbooks (Exhibit "H") to wit:

(Complainant's One Country, One People, page 15)

HUNDRED ISLANDS

The Hundred Islands is in Pangasinan. It is called Hundred Islands because it has many islands . People enjoy swimming and boat- riding around the islands. They enjoy walking in the white sand, too.

(page 18)

MAYON VOLCANO

Mayon Volcano is located in Legaspi. Mayon Volcano is located in Legaspi, Albay. This beautiful volcano is famous for its almost perfect conif"~

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But it can be dangerous when it erupts. It destroys plants and houses and even kills people.

TAAL VOLCANO

Taal Volcano can be seen in Taal, Batangas, south of Luzon. Taal Volcano is said to be the smallest volcano not only in the Philippines but also in the whole world. It is a volcano within a lake.

(Respondent's Our Beloved Country, page 44)

HUNDRED ISLANDS.

He Hundred Islands is found in Pangasinan . The place is called Hundred Islands because it is composed of many islands. People visiting this place enjoy swimming and boat riding around the islands. People like to walk in the white sand.

(page 46)

MAYON VOLCANO

Mayon Volcano is located in legaspi, Albay. This volcano is famous because of its perfect cone shape. It can be harmful to people when it erupts. It can destroy plants, animals, and houses. Farmers like to plant at the bottom of the volcano because the land is fertile.

TAAL VOLCANO

Taal Volcano is located in Taal, Batangas in Luzon. Taal Volcano is the smallest volcano in the Philippines and in the world. This volcano is within a lake.

Each sentence carries the same content but translated in different ways that paraphrase each other. In the GR 3 textbook, the depiction of a road map on page 25 of both textbooks (Exhibit "H") were exactly the same. The street names were different but the map on which the names were indicated was almost identical.

In Pacita Habana vs. Felicidad Robles, [G.R. No. 131522. July 19, 1999.], the Supreme Court explained that infringement is committed by copying portions of a book without acknowledgement of the source. It held:

"In cases of infringement, copying alone is not what is prohibited. The copying must produce an "injurious effect" . Here, the injury consists in that respondent Robles lifted from petitioners' book materials that were the result of the latter'~ j,,~1 research work and compilation and misrepresented them as her own. She/'! ;tV. ~

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circulated the book DEP for commercial use and did not acknowledge petitioners as her source.

Hence, there is a clear case of appropriation of copyrighted work for her benefit that respondent Robles committed. Petitioners' work as authors is the product of their long and assiduous research and for another to represent it as her own is injury enough. In copyrighting books the purpose is to give protection to the intellectual product of an author. This is precisely what the law on copyright protected, under Section 184.1 (b). Quotations from a published work if they are compatible with fair use and only to the extent justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries are allowed provided that the source and the name of the author, if appearing on the work, are mentioned.

In the case at bar, the least that respondent Robles could have done was to acknowledge petitioners Habana et al. as the source of the portions of DEP. The final product of an author's toil is her book. To allow another to copy the book without appropriate acknowledgment is injury enough.

The law also provided for the limitations on copyright, thus:

"SECTION 184.1 Limitations on copyright. - Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:

(a) the recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society; [Sec. 10(1), P.O. No. 49]

(b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries; Provided, that the source and the name of the author, if appearing on the work are mentioned; (Sec. 11 third par. P.O. 49)

xxx xxx xxx

(e) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording of film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and the name of the author, if appearing in the work is mentioned;

In the above quoted provisions, "work" has reference to literary and artistic creations and this includes books and other literary, scholarly and scientific works.

A perusal of the records yields several pages of the book DEP that are similar if not identical with the text of CET.

On page 404 of petitioners' Book 1 of College English for Today, the autho;Y;S~ wrote:

Items in dates and addresses:

He died on Monday, April 15, 1975.

Miss Reyes lives in 214 Taft Avenue, Manila 22

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"

On page 73 of respondents Book 1 Developing English Today, they wrote: cdasia

He died on Monday, April 25, 1975.

Miss Reyes address is 214 Taft Avenue Manila 23

On Page 250 of CET, there is this example on parallelism or repetition of sentence structures, thus:

"The proposition is peace. Not peace through the medium of war; not peace to be hunted through the labyrinth of intricate and endless negotiations; not peace to arise out of universal discord, fomented from principle, in all parts of the empire; not peace to depend on the juridical determination of perplexing questions, or the precise marking of the boundary of a complex government. It is simple peace; sought in its natural course, and in its ordinary haunts. It is peace sought in the spirit of peace, and laid in principles purely pacific.

- Edmund Burke, "Speech on Criticism."

On page 100 of the book DEP, also in the topic of parallel structure and repetition, the same example is found in toto. The only difference is that petitioners acknowledged the author Edmund Burke, and respondents did not.

In several other pages 26 the treatment and manner of presentation of the topics of DEP are similar if not a rehash of that contained in CET.

We believe that respondent Robles' act of lifting from the book of petitioners substantial portions of discussions and examples, and her failure to acknowledge the same in her book is an infringement of petitioners' copyrights.

When is there a substantial reproduction of a book? It does not necessarily require that the entire copyrighted work, or even a large portion of it, be copied. If so much is taken that the value of the original work is substantially diminished, there is an infringement of copyright and to an injurious extent, the work is appropriated.

In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration . To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute piracy."

In its memorandum (page 6), complainants acknowledge that the Department of Education has prescribed a syllabus and curriculum for specific books to be published but argued that materials used as examples and illustrations are not limited.

Complainant's witness Estelita B. Capina testified on February 2, 2006, to wit:

"Atty. Inventado: Will you tell us briefly on what aspect would you consider tha~~~ there are similarities between these two (2) books? ~I! /"

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Ms. Witness: "In our "illustrations. drawings. layout, treatment, letter, font, arrangemem, and even in the manner of presentation (TSN, February 2, 2006, p.11)

Citing Goldstein, Copyright Vol. S. 2.14.3.1, p. 187 (1989), Copyright Under the Intellectual Property Code, Vicente B. Amador p. 86, 1998, he states:

"Courts have found protectible expression not only in the literal wording of a textbook or treatise, but also in its arrangement, style and manner of presentano to the extent that either is dictated by the subject matter of the work and the ~3tufe of its intended options. Courts generally limit protection for simplified instructional manuals and will protect a manual's content and manner of presentation, as distinct from literal wording and precise depictions, only if functional considerations did not dictate the content and manner of presentation."

As a general matter, and to varying degrees, copyright protection extends beyond a literary work's strict textual form to its non-literal components. As we have said, "it is of course essential to any protection of literary property ... that the right cannot be limited literary to the text, else a plagiarist would escape by immaterial variations . Nichols v. Universal Pictures Co., 45 F 2d 119, 121 [7 USPQ 84] (2d Cir. 1930).

The Bureau finds that infringement was committed in instances where it paraphrased the complainant's works by closely following the detailed order in which the ideas are expressed. The structure and order in which information is relayed as well as the choice of words used form part of the expression which the author is entitled to protection.

In proving damages, complainant made a computation (Exhibit 'F) of supposed sales from six schools for the school year 2006-2007, in the amount of P459,638 which could have been paid but were lost on account of the infringement. This self serving assessment is a specious basis for the award of actual damages. The lost sales cannot be wholly attributed to the infringement because there may be other reasons or factors that the schools enumerated by complainants chose not to purchase from it

Nevertheless, complainant is entitled to temperate damages defined under Article 2224 of the Civil Code. The provision states: "Temperate or Moderate Damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty. The Supreme Court in Pleno v. Court of Appeals held:

"Temperate damages are included in the context of compensatory damages. In arriving at a reasonable level of temperate damages to be awarded, trial courts are guided by our ruling that:

"... There are cases where from the nature of the case, definite proof of pecuniary loss cannot be offered, although the court is convinced that there has been such loss. For instance, injury to one's commercial credit or to the goodwill of a business firm is often hard to show certainty in terms of money. Should damages be denied for that reason? The judge should be empowered to calculate moderate damages in such cases, rather than that the plaintiff ShO~~

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suffer, without redress from the defendant's wrongful act." (Araneta v. Bank of America, 40 SCRA 144)

As such, the amount of Five Hundred Thousand Pesos (Php 500,000) is appropriate. Additionally, an administrative fine of One Hundred Fifty Thousand (Php 150,000) is imposed on respondent and P100,OOO as attorneys fees .

WHEREFORE, in view of the foregoing, this Bureau finds that respondent, Sunshine Interlinks House Corporation infringed the copyright of complainants in One Country, One People GR 1,2,3,4,5 and 6. Respondents are hereby ordered to cease and desist from distributing, selling, offering for sale Philippine Our Beloved Country 1,2,3,4,5, and 6.

Respondents are further ordered to pay the complainant the amount of Five Hundred Thousand Pesos (Php 500,000). Additionally, an administrative fine of One Hundred Fifty Thousand Pesos (Php 150,000) and One Hundred Thousand Pesos(Php 100,000) as attorneys fees is imposed on respondent

SO ORDERED.

Makati City. 9 December 2009.

LUTA BELTRAN.ABELARDO . ,l irector, Bureau of Legal Affairs/" ~

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