THIRD DIVISION

[G.R. No. 166337. March 7, 2005.]

BAYANIHAN MUSIC PHILIPPINES, INC., petitioner, vs. BMG

RECORDS (PILIPINAS) AND JOSE MARI CHAN, ET AL.,
respondent.

RESOLUTION

Gentlemen:

Quoted hereunder, for your information, is a resolution of the Third

Division of this Court dated March 7, 2005.

Subject of this petition for review on certiorari is the Decision dated

December 14, 2004 1(1) of the Court of Appeals in CA-G.R. SP No. 69626,
upholding the Order dated August 24, 2001 of the Regional Trial Court at Quezon
City, Branch 90, which found no merit in petitioner's application for the issuance
of a writ of preliminary injunction, along with the Order dated January 10, 2002,
which denied petitioner's motion for reconsideration.

On July 16, 1973, private respondent Jose Mari Chan (Chan) entered into a
contract with petitioner Bayanihan Music Philippines, Inc. (Bayanihan),
whereunder the former assigned to the latter all his rights, interests and
participation over his musical composition "Can We Just Stop and Talk A While".
On March 11, 1976, the parties entered into a similar contract over Chan's other
musical composition entitled "Afraid For Love To Fade".

On the strength of the abovementioned contracts, Bayanihan applied for

and was granted by the National Library a Certificate of Copyright Registration for
each of the two musical compositions, thus: November 19, 1973, for the song
"Can We Just Stop and Talk A While" and on May 21, 1980, for the song "Afraid
for Love To Fade."

Apparently, without the knowledge and consent of petitioner Bayanihan,

Chan authorized his co-respondent BMG Records (Pilipinas) [BMG] to record and
distribute the aforementioned musical compositions in a then recently released
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 album of singer Lea Salonga.

In separate letters both dated December 7, 1999, petitioner Bayanihan

informed respondents Chan and BMG of its existing copyrights over the subject
musical compositions and the alleged violation of such right by the two. Demands
were made on both to settle the matter with Bayanihan. However no settlement
was reached by the parties.

Hence, on August 8, 2000, Bayanihan filed with the Regional Trial Court at
Quezon City a complaint against Chan and BMG for violation of Section 216 of
Republic Act No. 8293, otherwise known as the Intellectual Property Code of the
Philippines, with a prayer for the issuance of Temporary Restraining Order (TRO)
and/or writ of preliminary injunction, enjoining respondent BMG from further
recording and distributing the subject musical compositions in whatever form of
musical products, and Chan from further granting any authority to record and
distribute the same musical compositions.

In its answer, BMG contended, among others, that: (1) the acts of recording
and publication sought to be enjoined had already been consummated, thereby
rendering moot Bayanihan's prayer for TRO and/or preliminary injunction; and (2)
there is no clear showing that petitioner Bayanihan would be greatly damaged by
the refusal of the prayed for TRO and/or preliminary injunction. BMG also
pleaded a cross-claim against its co-respondent Chan for violation of his warranty
that his musical compositions are free from claims of third persons, and a
counterclaim for damages against petitioner Bayanihan.

Chan, for his part, filed his own answer to the complaint, thereunder
alleging that: (1) it was never his intention to divest himself of all his rights and
interest over the musical compositions in question; (2) the contracts he entered into
with Bayanihan are mere music publication agreements giving Bayanihan, as
assignee, the power to administer his copyright over his two songs and to act as the
exclusive publisher thereof; (3) he was not cognizant of the application made by
and the subsequent grant of copyrights to Bayanihan; and (4) Bayanihan was
remissed in its obligations under the contracts because it failed to effectively
advertise his musical compositions for almost twenty (20) years, hence, he caused
the rescission of said contracts in 1997. Chan also included in his answer a
counterclaim for damages against Bayanihan.

After hearing the parties, the lower court came out with an order denying
Bayanihan's prayer for TRO, saying, thus:

After carefully considering the arguments and evaluating the

evidence presented by counsels, this Court finds that the plaintiff has not
been able to show its entitlement to the relief of TRO as prayed for in its
verified complaint (see Section 4, Rule 58 of the 1997 Rules of Civil
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 Procedure, as amended), hence, this Court is of the considered and humble
view that the ends of justice shall be served better if the aforecited
application is denied.

IN VIEW OF THE FOREGOING, the aforecited application or

prayer for the issuance of a TRO is denied.

SO ORDERED.

Thereafter, the same court, in its subsequent Order dated August 24, 2001,
2(2) likewise denied Bayanihan's prayer for a writ of preliminary injunction, to
wit:

After carefully going over the pleadings and the pertinent portions of
the records insofar as they are pertinent to the issue under consideration, this
Court finds that the plaintiff has not been able to show its entitlement to the
relief of preliminary injunction as prayed for in its verified complaint (see
Section 4, Rule 58 of the 1997 Rules of Civil Procedure, as amended),
hence, this Court is of the considered and humble view that the ends of
justice shall be served better if the aforecited application is denied. (see also
Order dated July 16, 2001).

IN VIEW OF THE FOREGOING, the application or prayer for the

issuance of a writ of preliminary injunction is denied.

SO ORDERED.

Its motion for a reconsideration of the same order having been likewise
denied by the trial court in its next Order of January 10, 2002, 3(3) petitioner
Bayanihan then went to the Court of Appeals on a petition for certiorari, thereat
docketed as CA-G.R. SP No. 69626, imputing grave abuse of discretion on the part
of the trial court in issuing the Orders of August 24, 2001 and January 10, 2001,
denying its prayers for a writ of preliminary injunction and motion for
reconsideration, respectively.

In the herein assailed Decision dated December 14, 2004, the Court of
Appeals upheld the challenged orders of the trial court and accordingly dismissed
Bayanihan petition, thus:

WHEREFORE, finding neither flaw of jurisdiction nor taint of grave

abuse of discretion in the issuance of the assailed Orders of the respondent
court dated August 24, 2001 and January 10, 2002, the instant petition is
DISMISSED. No costs.

SO ORDERED. 4(4)

Hence, Bayanihan's present recourse.

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 It is petitioner's submission that the appellate court committed reversible
error when it dismissed its petition for certiorari and upheld the trial court's denial
of its application for a writ of preliminary injunction. Petitioner insists that as
assignee of the copyrights over the musical compositions in question, it has a clear
legal right to a writ of preliminary injunction; that respondents BMG and Chan
violated its copyrights over the same musical compositions; that despite
knowledge by respondent BMG of petitioner's copyrights over the said musical
compositions, BMG continues to record and distribute the same, to petitioner's
great and irreparable injury.

We DENY.

We have constantly reminded courts that there is no power, the exercise of

which is more delicate and requires greater caution, deliberation and sound
discretion, or which is more dangerous in a doubtful case, than the issuance of an
injunction. A court should, as much as possible, avoid issuing the writ which
would effectively dispose of the main case without trial.

Here, nothing is more evident than the trial court's abiding awareness of the
extremely difficult balancing act it had to perform in dealing with petitioner's
prayer for injunctive reliefs. Conscious, as evidently it is, of the fact that there is
manifest abuse of discretion in the issuance of an injunctive writ if the following
requisites provided for by law are not present: (1) there must be a right in esse or
the existence of a right to be protected; and (2) the act against which the injunction
is to be directed is a violation of such right, 5(5) the trial court threaded the correct
path in denying petitioner's prayer therefor. For, such a writ should only be granted
if a party is clearly entitled thereto. 6(6)

Of course, while a clear showing of the right to an injunctive writ is

necessary albeit its existence need not be conclusively established, 7(7) as the
evidence required therefor need not be conclusive or complete, still, for an
applicant, like petitioner Bayanihan, to be entitled to the writ, he is required to
show that he has the ostensible right to the final, relief prayed for in its complaint.
8(8) Here, the trial court did not find ample justifications for the issuance of the
writ prayed for by petitioner.

Unquestionably, respondent Chan, being undeniably the composer and

author of the lyrics of the two (2) songs, is protected by the mere fact alone that he
is the creator thereof, conformably with Republic Act No. 8293, otherwise known
as the Intellectual Property Code, Section 172.2 of which reads:

172.2. Works are protected by the sole fact of their creation,

irrespective of their mode or form of expression, as well as of their content,
quality and purpose.
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 An examination of petitioner's verified complaint in light of the two (2)
contracts sued upon and the evidence it adduced during the hearing on the
application for preliminary injunction, yields not the existence of the requisite
right protectable by the provisional relief but rather a lingering doubt on whether
there is or there is no such right. The two contracts between petitioner and Chan
relative to the musical compositions subject of the suit contain the following
identical stipulations:

7. It is also hereby agreed to by the parties herein that in the event

the PUBLISHER [petitioner herein] fails to use in any manner whatsoever
within two (2) years any of the compositions covered by this contract, then
such composition may be released in favor of the WRITER and excluded
from this contract and the PUBLISHER shall execute the necessary release
in writing in favor of the WRITER upon request of the WRITER;

xxx xxx xxx

9. This contract may be renewed for a period of two-and-one-half

(2 1/2) years at the option of the PUBLISHER. Renewal may be made by
the PUBLISHER by advising the WRITER of such renewal in writing at
least five (5) days before the expiration of this contract. 9(9)

It would thus appear that the two (2) contracts expired on October 1, 1975
and March 11, 1978, respectively, there being neither an allegation, much less
proof, that petitioner Bayanihan ever made use of the compositions within the
two-year period agreed upon by the parties.

Anent the copyrights obtained by petitioner on the basis of the selfsame two
(2) contracts, suffice it to say that such purported copyrights are not presumed to
subsist in accordance with Section 218[a] and [b], of the Intellectual Property
Code, 10(10) because respondent Chan had put in issue the existence thereof.

It is noted that Chan revoked and terminated said contracts, along with
others, on July 30, 1997, or almost two years before petitioner Bayanihan wrote its
sort of complaint/demand letter dated December 7, 1999 regarding the recent
"use/recording of the songs 'Can We Just Stop and Talk A While' and 'Afraid for
Love to Fade,"' or almost three (3) years before petitioner filed its complaint on
August 8, 2000, therein praying, inter alia, for injunctive relief. By then, it would
appear that petitioner had no more right that is protectable by injunction.

Lastly, petitioner's insinuation that the trial court indulged in

generalizations and was rather skimpy in dishing out its reasons for denying its
prayer for provisional injunctive relief, the same deserves scant consideration. For
sure, the manner by which the trial court crafted its challenged orders is quite
understandable, lest it be subjected to a plausible suspicion of having prejudged
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 the merits of the main case.

WHEREFORE, petition is hereby DENIED.

SO ORDERED.

Very truly yours,

(SGD.) LUCITA ABJELINA SORIANO

Clerk of Court

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