The Supreme Court (SC) has ruled that the act of playing radio broadcasts with copyrighted music using loudspeakers (radio-over-loudspeakers) without a license from the copyright owner is considered an infringement of copyright.
With the decision, the SC granted the petition of the Filipino Society of Composers, Authors and Publishers, Inc. (FILSCAP) as it reversed and set aside the rulings handed down by both the trial courts and the Court of Appeals (CA), which denied the association’s right to collect license fees and/or royalties over copyrighted works of its member artists.
Instead, the high court ordered respondent Anrey, Inc. to pay the FILSCAP P10,000 as temperate damages for the unlicensed public performance of the copyrighted songs on FILSCAP’s repertoire.
The SC also ordered Anrey to pay P50,000 as attorney’s fees, plus interest at the rate of 12 percent per annum from Sept. 8, 2009 until June 30, 2013, and thereafter, six percent per annum from July 1, 2013, until the finality of the high court’s judgment.
In a decision penned by Associate Justice Rodil V. Zalameda, the SC ruled held that “a radio reception creates a performance separate from the broadcast, otherwise known as the doctrine of multiple performances, which provides that a radio (or television) transmission or broadcast can create multiple performances at once.”
“Thus, on whether the reception of a broadcast may be publicly performed, it is immaterial if the broadcasting station has been licensed by the copyright owner because the reception becomes a new public performance requiring separate protection,” the SC said.
The high tribunal ruled that radio reception transmitted through loudspeakers to enhance profit does not constitute, and is not analogous to, fair use.
The SC also ordered that a copy of the decision be furnished to the Intellectual Property Office of the Philippines for their guidance and information, as well as to the House of Representatives and the Senate of the Philippines.
This would be a reference for possible statutory amendments to the Intellectual Property Code “without violating the State’s commitments under the Berne Convention and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement,” the tribunal added.
The PIO said the case arose when a FILSCAP representative monitored between July and September 2008 that the branches of Sizzling Plate Restaurant along Session Road and along Abandon Extension in Baguio City, both owned by respondent Anrey, played copyrighted music owned by FILSCAP.
It said that FILSCAP informed the restaurant owners of the unauthorized public performance of copyrighted music and urged them to secure licenses from FILSCAP to avoid prosecution.
When its plea was unheeded, it filed a complaint before the Baguio City Regional Trial Court (RTC) for copyright infringement.
In its defense, Anrey denied playing any copyrighted music within its establishments and claimed that its establishments played whatever was being broadcast on the radio they were tuned to.
In dismissing FILSCAP’s complaint, the RTC cited Section 184 (i) of Republic Act No. 8293, the Intellectual Property Code of the Philippines, which exempts public performances by a club or institution for charitable or educational purposes provided, they are not making profit and they do not charge admission fees.
When its motion for reconsideration was denied by the trial court, FILSCAP elevated the issue before the CA, which upheld the trial court’s ruling. FILSCAP then filed a petition before the SC.
The Supreme Court found merit in FILSCAP’s petition for review, even as it upheld FILSCAP’s legal standing to sue for copyright infringement.
FILSCAP, it noted, is accredited by the Intellectual Property of the Philippines to perform the role of a Collective Management Organization and a member of the Paris-based International Confederation of Societies of Authors and Composers, the umbrella organization of all composer societies worldwide.
The Court noted that it was evident that the first element of copyright infringement has been satisfied: that FILSCAP has the authority to collect royalties and/or license fees and sue for copyright infringement.
“As an assignee of copyright, it is entitled to all the rights and remedies which the assignor had with respect to the copyright,” it said.
The SC held that the free use by commercial establishments of radio broadcasts is beyond the normal exploitation of the copyright holder’s creative work. Denying the petition would gravely affect the copyright holder’s market where instead of paying royalties, they use free radio reception.
It also stressed that FILSCAP was deprived of license fees due to Anrey’s acts of infringement as it failed to receive the benefit of license fees from Anrey, which publicly performed without license or authority the subject copyrighted works in its restaurants for the benefit of its customers and to enhance its profit.
The Court hinted at possible amendments under the Intellectual Property Code, noting that the very broad definition of a public performance in the Code is a cause for concern.
The high court stressed that by the mere definition of what a public performance is, listeners of a radio station, to some extent, risk copyright infringement.
It noted that foreign jurisdictions have recognized this dilemma, with some having already taken steps to address the situation.
