Implementing Rules and Regulations Issued Pursuant to the MOA Dated June 16, 2006

April 2, 2007

NTC-IP PHILIPPINES JOINT MEMORANDUM CIRCULAR NO. 1-07

IMPLEMENTING RULES AND REGULATIONS ISSUED PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JUNE 16, 2006

WHEREAS, the National Telecommunications Commission is the regulatory agency of the government responsible for granting of certificates of authority, permits and/or licenses to install, operate and maintain Radio/TV Broadcast and CATV services and direct broadcast services throughout the Philippines;

WHEREAS, the Intellectual Property Office of the Philippines is the national agency mandated to administer and implement Republic Act No. 8293 otherwise known as the Intellectual Property Code of the Philippines;

WHEREAS, the Parties have agreed to provide for an administrative mechanism to effectively and expeditiously resolve cases involving cable piracy and copyright infringements;

NOW, THEREFORE, in view of the foregoing, the following implementing rules and regulations are hereby promulgated:

RULE 1

General Provisions

SECTION 1. Definition of Terms.— Unless otherwise indicated herein, the following terms shall be understood as follows:

(a) Broadcast Operator — refers to an entity engaged in the business of radio or television broadcasting.

(b) Bureau — refers to the Bureau of Legal Affairs of the Intellectual Property Office of the Philippines.

(c) CATV Operator — refers to an entity engaged in the business of cable television system or community antenna television.

(d) Complaint/Case — refers to an administrative action brought against a broadcast, CATV or direct broadcast service operator for violation of NTC laws, rules and regulations and/or violation involving Intellectual Property Rights as defined under RA 8293 and its Implementing Rules and Regulations.

(e) Direct Broadcast Satellite (DBS) Service — refers to the service that delivers TV programs to the home through a satellite receiving dish, rather than through a cable system landline wherein pictures are sent aloft, bounced off a satellite transponder and returned directly to the subscriber's home; also known as direct-to-home/direct-to-user (DTH/DTU) broadcast system.

(f) Intellectual property rights (IPR) — shall, within the context and for purposes of this IRR, refer to copyright and related rights.

(g) Intellectual property rights violations (IPV) — refers to the unauthorized and unlawful use or exploitation of the intellectual property rights referred to in paragraph (f).

(h) IRR — refers to this Implementing Rules and Regulations including future revisions and amendments thereto.

(i) IP Philippines — refers to the Intellectual Property Office of the Philippines.

(j) NTC — refers to the National Telecommunications Commission.

SECTION 2. Jurisdiction of NTC. — The NTC exercises jurisdiction over all administrative cases involving violations of permits, licenses and authority to operate radio and television broadcasts including cable television system or community antenna television and direct broadcast satellite system as provided for under Act No. 3846 and Executive Orders No. 436 and 205 and its applicable rules and regulations. DHECac

SECTION 3. Jurisdiction of IP Philippines. — The IP Philippines exercises original jurisdiction over all administrative cases involving intellectual property rights violations under RA 8293 and its implementing rules and regulations.

SECTION 4. Special Provision. — Administrative cases filed with the NTC or with the IP Philippines involving violations of NTC laws, rules and regulations and violations of intellectual property rights shall be governed by the provisions of this IRR. The provisions of this IRR shall not be construed as a limitation on the right of an offended party to file criminal or civil action for violation of laws involving intellectual property rights or for cases involving cable piracy and copyright infringement.

RULE 2

Administrative Complaints; Where to File

SECTION 1. Complaint for Violation of Intellectual Property Rights. — A person may directly file with the IP Philippines a complaint against any Radio/TV broadcast operators, including CATV operators and DBS Service operators for violation of laws involving intellectual property rights.

SECTION 2. Complaint for Violation of NTC Rules and Regulations. — A person shall directly file with the NTC a complaint against any Radio/TV broadcast operators, including CATV operators and DBS Service operators for violation of NTC laws, rules and regulations.

SECTION 3. Referral of Cases to IP Philippines. — For complaints filed with the NTC involving violations contemplated in Section 4, Rule 1 above, NTC shall proceed to process the complaint as follows:

(a) The NTC through its Legal Department shall evaluate and determine whether a complaint filed before it alleges matters involving violation of intellectual property rights.

(b) If NTC makes such a determination, NTC shall issue an order of provisional dismissal and advise the party concerned:

(i) Of its findings citing its reason therefor, giving the party concerned the option of pursuing the IP violation either before the IP Philippines or with the regular courts;

(ii) Within fifteen (15) days from receipt of such Order, the party concerned shall manifest with the NTC where he intends to pursue his complaint for IP violation either before the courts or with the IP Philippines;

(iii) Should the party concerned manifest his intent to pursue said complaint with the IP Philippines, NTC shall immediately refer said complaint to the IP Philippines together with the entire records of the case for proper disposition in accordance with this IRR;

(c) The party exercising his option provided in (iii) above shall file his complaint with the Bureau in accordance with the Rules and Regulations on Administrative Complaints for Violation of Laws involving Intellectual Property Rights (Annex A hereof).

(d) Once the complaint is filed, the Bureau shall promptly notify NTC of such filing.

SECTION 4. Assumption of Jurisdiction by the IP Philippines. — Upon filing of the administrative complaint for IP violation, the Bureau shall take cognizance of the complaint and shall proceed to expeditiously resolve the complaint in accordance with its rules and regulations.

RULE 3

Effect of IP Philippines' Orders, Resolutions or Decisions

SECTION 1. IP Philippines' Orders, Resolutions or Decisions. — IP Philippines shall furnish NTC copies of all its interlocutory orders, final orders, resolutions or decisions, of all cases referred to it pursuant to this IRR and of cases directly filed before it involving IPV referred to in this IRR as these are issued from time to time for NTC's information and appropriate action as may be necessary or advisable in accordance with its rules and regulations governing entities subject to its supervision or jurisdiction.

SECTION 2. Actions that may be taken by NTC. — 2.1 Upon receipt of said orders, resolutions or decisions, the NTC shall consider the findings of the IP Philippines and shall issue within ten (10) days from receipt of said orders, resolutions or decisions, as may be appropriate:

(a) A directive to the party concerned to comply with IP Philippines' orders, resolutions or decisions.

(b) An order requiring the party concerned to Show Cause within ten (10) days from receipt thereof why its permit, license or authority should not be suspended or cancelled.

2.2 NTC shall, in evaluating whether or not to grant or renew a permit, license or authority of any Radio/TV broadcast operator, including CATV operators and DBS Service operators, consider whether or not the applicant had been or is involved in a case pending before the IP Philippines or the courts involving IPV.

In the event that IP Philippines has issued a Cease and Desist Order in a pending case before it involving an applicant, NTC shall not issue or renew the permit, license or authority of the applicant, unless there is sufficient showing by the applicant that the Cease and Desist Order has been lifted or complied with.

RULE 4

Cooperation in Monitoring and Enforcement

SECTION 1. Monitoring and Enforcement. — NTC shall monitor compliance by Radio/TV broadcast operators, including CATV operators and DBS Service operators of all applicable laws, rules and regulations involving intellectual property rights and shall assist IP Philippines in the enforcement of its orders, decisions, or resolutions.

SECTION 2. IP Philippines' Deputization of NTC. — NTC may be deputized by IP Philippines to help it implement its orders, resolutions or decisions involving violations of intellectual property rights. NTC shall provide IP Philippines with relevant data, statistics and information in support of IP Philippines' projects and activities for the protection and enforcement of intellectual property rights.

SECTION 3. Role of LGUs and Private Sector. — The assistance of Local Government Units and of the private sector may be sought in monitoring compliance and enforcement of intellectual property laws, rules and regulations. aTDcAH

SECTION 4. Continuing Cooperation. — IP Philippines and NTC shall continue and strengthen their cooperation by exchanging information and conducting workshops and trainings among their officials and personnel to enhance their capability in resolving issues involving telecommunications, broadcasting, cable piracy and intellectual property.

RULE 5

Review, Amendment and Revision

SECTION 1. Condition for Review, Amendment and Revision. — This IRR as well as the Memorandum of Agreement may be reviewed, amended and revised by mutual consent of the parties through a written notice or proposal from either party.

RULE 6

Effectivity

SECTION 1. Publication. — This IRR shall be published in a newspaper of general circulation and shall take effect fifteen (15) days from the date of publication.

Makati City, Philippines, April 2, 2007.

 

NATIONAL TELECOMMUNICATIONS COMMISSION

 

(SGD.) ABRAHAM R. ABESAMISCommissioner

 

INTELLECTUAL PROPERTY OFFICE OF THE PHILIPPINES

 

(SGD.) ADRIAN S. CRISTOBAL, JR.Director General

 

Witnesses

(SGD.) _________________

(SGD.) _________________