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PHILIPPINE INSTITUTE OF
COMPOSERS, AUTHORS AND
PUBLISHERS, INC,
Plaintiff,
x------------------------------------------------x
MOTION TO DISMISS
Defendant thru counsel, respectfully moves this Honorable Court to
dismiss the plaintiffs complaint on the following grounds:
1. That the pleading asserting the claim states no cause of action;
2. That the court has no jurisdiction over the person of the defendant.
ARGUMENTS
A. THE PLEADING ASSERTING THE CLAIM STATES NO
CAUSE OF ACTION
While it is not being denied that the establishment, Eat, Sing and
Dance Restaurant located at 3rd Floor Greenbelt 5, Ayala Avenue, Makati
City, owned and operated by herein Defendant, has been playing the alleged
copyrighted compositions, Ang Pagibig Ko Ay Wagas, Sa Isang Bukas
nalang Kita Mamahalin, Laging Sawi and Ang Pagbabalik, in the
course of its business operations, such act cannot be said to constitute an
infringement upon the Copyright law. The composers of the contested
musical compositions waived their right in favor of the general public when
they allowed their intellectual creations to become property of the public
domain before applying for the corresponding copyrights for the same.
The Supreme Court has ruled that "Paragraph 33 of Patent Office
Administrative Order No. 3 (as amended, dated September 18, 1947) entitled
'Rules of Practice in the Philippines Patent Office relating to the Registration
of Copyright Claims' promulgated pursuant to Republic Act 165, provides
among other things that an intellectual creation should be copyrighted thirty
(30) days after its publication, if made in Manila, or within the (60) days if
made elsewhere, failure of which renders such creation public property."
(Santos v. McCullough Printing Company, 12 SCRA 324-325 [1964].
Indeed, if the general public has made use of the object sought to be
copyrighted for thirty (30) days prior to the copyright application the law
deems the object to have been donated to the public domain and the same
can no longer be copyrighted. (Filipino Society of Composers vs. Benjamin
Tan, G.R. no. L-36402)
It appears on the records before the Intellectual Property Office that the
aforementioned musical compositions have been made popular on months
before they had been copyrighted, hence, the Plaintiff cannot claim
PRAYER
WHEREFORE, in view of the foregoing, defendant prays that
plaintiffs complaint be dismissed, with costs against the plaintiff.
(Venue, Date, signature)
NOTICE OF HEARING
To: Counsel for Plaintiff
Address:
Greetings!
Please take notice that on Thursday, September 10, 2015, at 5:00 pm.,
or as soon thereafter as counsel may be heard, the undersigned will ask this
Honorable Court to approve the foregoing Motion to Dismiss.
(attys signature)
EXPLANATION AS TO SERVICE
Copy of this Motion to Dismiss was served to the counsel for plaintiff
thru registered mail. Personal service cannot be effected due to lack of
manpower, as well as distance and time constraints.
(attys signature)
Copy furnished: counsel for plaintiff