Is ‘radio-over-loudspeakers’ playing of copyrighted music without license an infringement of copyright?

Published August 11, 2022, 1:30 PM

by Rey Panaligan 

Supreme Court (SC)

Is the act of playing radio broadcast with copyrighted music through the use of loudspeakers (radio-over-loudspeakers) without a license from the copyright owner considered a performance and an infringement of copyright?

Yes, said the Supreme Court (SC) as it cited jurisprudence adopted in the United States.

In a summary of the decision written by Associate Justice Rodil V. Zalameda, the SC’s public information office said “the SC 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.”

The PIO said referring to the decision: “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.”

It also said “the Court (SC) held that radio reception transmitted through loudspeakers to enhance profit does not constitute, and is not analogous to, fair use.”

A copy of the decision has not been made public. The SC’s PIO released its summary to the media on Thursday, Aug. 11.

With the decision, the SC granted the petition of Filipino Society of Composers, Authors and Publishers, Inc. (FILSCAP) as it reversed and set aside the rulings handed down by both the trial court 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.

It ordered respondent Anrey, Inc. to pay the FILSCAP ₱10,000 as temperate damages for the unlicensed public performance of the copyrighted songs on FILSCAP’s repertoire, and ₱50,000 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 finality of the SC’s judgment.

At the same time, the PIO said the SC “ordered that a copy of the Decision be furnished the Intellectual Property Office of the Philippines for their guidance and information, as well as the House of Representatives and the Senate of the Philippines as reference for possible statutory amendments on 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 Berne Convention provides that authors of musical works shall enjoy the exclusive right of authorizing the public performance of their works including the “public performance by any means or process” and “any communication to the public of the performance of the works.”

The TRIPS Agreement incorporates by reference the provisions on copyright from the Berne Convention.

FILSCAP is a non-profit society of composers, authors, and publishers and owns public performance rights over the copyrighted musical works of its members.

It also owns the right to license public performances in the Philippines of copyrighted foreign musical works of its members and affiliate performing rights societies abroad.

FILSCAP is deputized to enforce and protect the copyrighted works of its members or affiliates by issuing licenses and collecting royalties and/or license fees from anyone who publicly exhibits or performs music belonging to FILSCAP’s worldwide repertoire.

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 in.

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 profit making 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 filed a petition before the SC.

The PIO said the SC “found merit in FILSCAP’s petition for review.”

The PIO’s summary also stated:

“The Court 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 said 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.

“The Court was also not persuaded by Anrey’s contention that is exempt from securing a license since the radio station that broadcasted the copyrighted music already secured one from FILSCAP.

“In the case at bar, the reception was transmitted through loudspeakers within Anrey’s restaurants. While Anrey does not directly charge a fee for playing radio broadcasts over its speakers, such reception is clearly done to enhance profit by providing entertainment to the public, particularly its customers, who pay for the dining experience in Anrey’s restaurants.

“The Court 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.

“The Court said applying this exception to restaurants will also affect other uses in similar establishments like malls, department stores, retail stores, lounges and the like, causing a huge economic impact on the music industry in general.

“The Court found that the right of FILSCAP to license public performance of the subject copyrighted musical works, the public performance of such works in Anrey’s restaurants without license from FILSCAP, and the refusal of Anrey to pay the annual license fees for saidworks were duly established.

“The Court stressed that FILSCAP was deprived 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 of 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 Court said that by the mere definition of what a public performance is, listeners of a radio station, to some extent, risks copyright infringement.

“It noted that foreign jurisdictions have recognized this dilemma, with some having already taken steps to address the situation.”