G.R. No. 233918 - Dissenting Opinion

G.R. No. 233918, August 9, 2022,
♦ Decision, Zalameda, [J]
♦ Dissenting Opinion, Leonen, [J]
♦ Separate Concurring Opinion, Caguioa, [J]
♦ Dissenting Opinion, Lazaro-Javier, [J]
♦ Separate Concurring and Dissenting Opinion, Singh, [J]

FILIPINO SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, INC., PETITIONER, VS. ANREY, INC., RESPONDENT.

Petitioner Filipino Society of Composers, Authors and Publishers Inc. (FILSCAP) is a non-profit society of composers, authors, and publishers which owns public performance rights over the copyrighted musical works of its members. It also owns the right to license public performance rights in the Philippines of copyrighted foreign musical works of its members and affiliate performing rights societies abroad. Such rights proceed from the contracts it has entered into with various composers, authors and publishers, and record labels, as well as the reciprocal agreements it has with affiliate foreign societies authorizing FILSCAP to license the public performance in the Philippines of musical works under their repe1ioire. These agreements deputized FILSCAP 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.

These rights, however, are being challenged by respondent Anrey, Inc. (Anrey) when they were assessed by FILSCAP to pay annual license fees for the public exhibition of the copyrighted works of its members. The assessment came after a representative of FILSCAP, Ms. Ivy Labayne, conducted several days (between the months of July and September 2008) of monitoring over the chain of restaurants owned by Anrey in Baguio City.

FILSCAP sent several letters to the establishments concerned, informing them that an unauthorized public performance of copyright music amounts to infringement and urging them to secure licenses from FILSCAP and avoid prosecution. These demands fell on deaf ears, thus, FILSCAP filed a Complaint for Copyright Infringement against Anrey before the Regional Trial Court (RTC) in Baguio City, asking the court to award the following: a) ₱18,900.00 as compensatory damages; b) ₱300,000.00 as nominal damages; c) ₱100,000.00 as exemplary damages; and d) ₱50,000.00 as attorney's fees and litigation expenses.

In its Answer, Anrey denied playing any copyrighted music within its restaurants. It claimed that the restaurants it had been operating randomly and passively sounded off whatever was already being broadcasted on the radio their individual store was tuned in. In the alternative, Anrey argued that assuming it was sounding off copyrighted music inside its restaurants, the radio station had already paid the corresponding royalties, thus, FILSCAP would be recovering twice: from the station, and from it, simply because it tuned in on a broadcast intended to be heard by the public. Anrey maintained as well that even if the reception were to be considered a performance, this act would not qualify as a public performance since the broadcast was played for the benefit of its staff and not for its customers.

The trial court dismissed FILSCAP's amended complaint for lack of merit. It cited Section 184 (i) of Republic Act No. (RA) 8293 in excepting Anrey from copyright infringement, such that a public performance by a club or institution for charitable or educational purposes, whose aim is not profit making and does not charge admission fees, is not liable for copyright infringement.

On appeal, the Court of Appeals affirmed. In denying the appeal, the appellate court relied on the copyright laws of the United States of America (U.S.) exempting small business establishments under the homestyle exemption clause.

The Majority finds merit in the petition and rules to reverse the aforesaid decisions. It holds, as follows:

FILSCAP's cause of action is viable only if it has rights that have been violated by Anrey's act of making the reception of the radio station's broadcast of sound recordings audible to its restaurant's clientele. The ponencia identifies the economic rights of public performance of the work (Section 177.6 of RA 8293), i.e., referring to the sound recordings broadcasted by the radio station, and of communication to the public of the work (Section 177.7 of RA 8293).

But these economic rights, as defined by RA 8293, are not adversely impacted by the alleged infringing act. The right of public performance of the work has been defined in Section 171.6, viz.:

171.6.1aшphi1 "Public performance," in the case of a work other than an audiovisual work, is the recitation, playing, dancing, acting or otherwise performing the work, either directly or by means of any device or process; in the case of an audiovisual work, the showing of its images in sequence and the making of the sounds accompanying it audible; and, in the case of a sound recording, making the recorded sounds audible at a place or at places where persons outside the normal circle of a family and that family's closest social acquaintances are or can be present, irrespective of whether they are or can be present at the same place and at the same time, or at different places and/or at different times, and where the performance can be perceived without the need for communication within the meaning of Subsection 171.3.

On the other hand, communication to the public of the work is spelled out in Section 171.3 thus –

For purposes of the present case, critical to these economic rights is sound recording, which has been defined as –

202.2. ... the fixation of the sounds of a performance or of other sounds, or representation of sound, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;

Meanwhile, fixation is understood under Section 202.4 to be "the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device...."

Here, the patrons of Anrey's restaurant were able to listen to and perhaps enjoy the radio broadcast of sound recordings. What Anrey did was to make the radio broadcast of the sound recordings audible to its restaurant's clientele, but not the sound recordings themselves. To repeat, Anrey did not render the sound recordings themselves within the hearing of the restaurant patrons. Anrey did not have possession, much less, control of the sound recordings. What it did was merely to turn on the radio and allow the broadcast to be heard within the premises of its restaurant.

On the other hand, as defined, the public performance of the work pertains to sound recordings, those objects in which sounds were fixed or recorded. Who made the sound recordings audible to the restaurant's patrons was the radio station. It was the radio station that made possible the sound recordings to be within the hearing of the patrons. The radio station was the entity which exercised the public performance of the work and the sound recordings; not Anrey.

Too, Anrey did not exercise the right to communicate the work or the sound recordings to the public. It was not the one that transmitted to the public, by any medium, the representations of sounds fixed in sound recordings. The radio station was the entity possessing or controlling the sound recordings and the one which transmitted them to the public. Anrey was also not responsible for making the sound recordings available to the public in such a way by which members of the public may access these works from a place and time individually chosen by them. The patrons of Anrey's restaurant could not have accessed the sound recordings when it turned on the radio and left it switched on for their listening pleasure. Hence, Anrey could not have communicated the sound recordings to the public.

Because there was no public performance or communication to the public of the sound recordings which Anrey's restaurant patrons heard, we cannot conclude that there was infringement of the rights assigned to FILSCAP or that the latter is entitled to damages. As very well explained in Twentieth Century Music Corp. v. Aiken:4

If, by analogy to a live performance in a concert hall or cabaret, a radio station "performs" a musical composition when it broadcasts it, the same analogy would seem to require the conclusion that those who listen to the broadcast through the use of radio receivers do not perform the composition. And that is exactly what the early federal cases held. "Certainly those who listen do not perform, and therefore do not infringe." Jerome H. Remick & Co. v. General Electric Co., supra, at 829. "One who manually or by human agency merely actuates electrical instrumentalities, whereby inaudible elements that are omnipresent in the air are made audible to persons who are within hearing, does not "perform" within the meaning of the Copyright Law." Buck v. Debaum, 40 F. 2d 734, 735 (SD Cal. 1929).

Assuming I was wrong in my understanding of the economic rights of public performance of the work and communication of the work to the public, I respectfully submit that Anrey's act of tuning into the radio and allowing its sound recordings to be heard and enjoyed by its restaurant patrons falls within the limitation to copyright recognized by Section 184(1)(a) of RA 8293 –

(a) The recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society;

There is no question that Anrey did not charge its restaurant's patrons for the music that they heard coming from the radio station it tuned in. The issue is whether it was done privately. I submit it was.

Privately should be interpreted beyond how the right of public performance of the work pursuant to Section 171.6 of RA 8293 says of what public is – persons outside the normal circle of a family and that family's closest social acquaintances. Private does not refer to just being within the normal circle of family and its closest social acquaintances.

In Twentieth Century Music Corp. v. Aiken,5 the United States Supreme Court explained the prudential reasons for rejecting as public performance the radio broadcast of sound recordings for the listening pleasure of patrons of a small restaurant –

This is truer in this country than in the United States. Radio is still the most accessible means of entertainment and information for most of our people. Internet may now be ubiquitous for those who have resources to spare but not to the many who have to live by the day. They are the ones who have small businesses to tender, with the radio as their only companion as source of entertainment and information. The ruling that the Majority forges will deny these penurious businesses the radio as their mode for connecting to the rest of the country and a means for relieving them of stress.

It is not uncommon for this Court to adopt from foreign jurisdictions concepts and doctrines that allowed a judge or court not to decline to render judgment by reason of the silence, obscurity, or insufficiency of the laws. We have often supplemented ambiguous terms in our statutes with thinking from elsewhere where it makes sense to do so.

Here, copyright should be limited where to do otherwise would be oppressive to the marginalized and underrepresented, those who cannot afford beyond what the ubiquitous radio could afford. The homestyle exemption in the United States could be adapted to help us define what private means in Section 184(1)(a) of RA 8293.

In the context of this case, the above elements should define what the word private means in Section 184(1)(a) of RA 8293. The definition hews closely to how public is described in Section 171.6 of RA 8293 says of what public is – persons outside the normal circle of a family and the family's closest social acquaintances. There is a close analogy between the family setting and the homestyle characterization as a copyright limitation. This familiarity between the concepts should not get lost.

ACCORDINGLY, I vote to dismiss the petition and affirm the respective Decisions of the trial court and the Court of Appeals.