Republic of the Philippines

National Capital Judicial Region

REGIONAL TRIAL COURT
Branch 13, Makati City
OGIE RIVERA VALENCIANO,
Defendant.
Civil Case No. __________
- versus -

For: Copyright Infringement

With Damages

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

exclusive right over them. Consequently, it is clear that the musical

compositions in question have become public property and therefore beyond
the protection of the Copyright Law.

B. THAT THE COURT HAS NO JURISDICTION OVER THE

PERSON OF THE DEFENDANT
In addition to the abovementioned ground, due to the defective service
of summons, the court has not acquired jurisdiction over the person of the
defendant. Based on the records, service of summons was made upon the
defendant by substituted service; that service was made on the Security
guard of the establishment. Section 7, Rule 14 of the Rules of court
provides:
SEC. 7. Substituted service. If, for justifiable causes, the defendant
cannot be served within a reasonable time as provided in the preceding
section, service may be effected (a) by leaving copies of the summons at the
defendant's residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at defendant's office or regular
place of business with some competent person in charge thereof.
As held in Casmina vs. Legaspi (2005), it is to be noted that in case of
substituted service, there should be a report indicating that the person who
received the summons in the defendant's behalf was one with whom the
defendant had a relation of confidence, ensuring that the latter would
actually receive the summons.

Also, in B.D. Long Span Builders, Inc. v. R.S. Ampeloquio Realty

Development, Inc., (599 SCRA 468), the Supreme Court held that the
impossibility of prompt personal service must be shown by stating that
efforts have been made to find the defendant personally and that such efforts
have failed. This is necessary because substituted service is in derogation of
the usual method of service. It is a method extraordinary in character, hence,
may be used only as prescribed and in the circumstances authorized by
statute. The statutory requirements of substituted service must be followed
strictly, faithfully and fully, and any substituted service other than that
authorized by statute is considered ineffective.
In this case, it was not shown that the guard who received the
summons in behalf of the plaintiff possessed a relation of confidence that
petitioner would definitely receive the summons. This is not the kind of
service contemplated by law. Thus, service on the security guard could not
be considered as substantial compliance with the requirements of substituted
service. (Chu vs. Mach Asia Trading Corporation (2013).
There being no valid service of summons, the court is without
jurisdiction over the person of the defendant.

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