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.

The majority granted the Petition for Review on Certiorari filed by petitioner Filipino Society of Composers, Authors and Publishers, Inc., finding that respondent Anrey, Inc. committed copyright infringement when it played radios that broadcasted copyrighted music in its restaurants, without paying the necessary license fees demanded by petitioner.

The reception and amplification of radio transmissions in a public space should not be considered an infringement of the copyright over musical compositions, notwithstanding the public space's proprietor lacking license from the copyright holder.

Article XIV, Section 13 of the Constitution lays down the State's duty to protect its citizens' intellectual property and creations:

SECTION 13. The State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.

This is reflected in Section 2 of Republic Act No. 8293, otherwise known as the Intellectual Property Code:

Section 2 articulates what appears to be two conflicting goals of intellectual property protection. On one hand, a monopoly is granted to scientists, inventors, artists, and other gifted citizens for the exploitation and use of their intellectual property; on the other, the diffusion of intellectual property for the common good. Specifically, for copyright, the problem today "is how best to reconcile the interest of three groups—authors, who give expression to ideas; publishers, who disseminate ideas; and the members of the public, who use the ideas."1

However, the conflict may be more apparent than real. No work is truly created in a vacuum, and many created works are perched on the shoulders of giants. This is recognized in our intellectual property laws, in prior art2 for patents and derivative works3 in copyright.

A salutary goal of intellectual property protection is the promise to creators that, should they disclose their creations to the world, they will, for a term provided by law, exclusively benefit from their creations. And, when that term expires, the public may then freely enjoy those creations.4 In ABS-CBN Corporation v. Gozon:5

Copyright regulation should not be reduced to economic exercises by individuals. Intellectual creations may be property under our laws, but our Constitution recognizes the social function of the use of property and its contribution to the common good. Article XII, Section 6 states:

SECTION 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.

The "common good" in this provision applies equally to all property, including all intellectual property. The majority's assertions that, first, "[t]he simple nuances between the different kinds of intellectual creations show the inclination to afford protection to copyright, more than other forms"7 and second, "copyright does not impact people's lives as much as patented inventions do[,]"8 have no textual basis in our Constitution and our laws.

The Intellectual Property Code provides different kinds of protection depending on the intellectual property involved. The procedures, rights, and obligations are calibrated based on the characteristics of the specific intellectual property. For example, a patent's term is 20 years from filing date;9 a copyright holder's rights last during their lifetime and 50 years after death;10 and a trademark registration may be indefinitely renewable so long as certain conditions are met.11 Copyright vests upon the moment of creation;12 the acquisition of a letters patent or registered trademark involves application, publication, and approval with the Philippine Intellectual Property Office. These differences should not be interpreted to imply a hierarchy of protection, that the rights accorded to a copyright holder are superior to the rights of a patent or trademark holder, or vice versa, or that one may expect less equitable treatment when it comes to the enforcement of their respective rights.

The same holds true for works that fall within the ambit of copyright. Categories of works are protected differently due to their characteristics. Our copyright law recognizes that written works are exploited in ways different from visual, musical, audiovisual works, and works of applied art; hence, certain provisions clarify how parts of the law will operate for that particular kind of work.13 Nonetheless, all copyright holders can expect the same term of protection, exclusive economic rights, and access to remedies should there be an infringement of those rights.

Respectfully, it is reductive to assert that the common good is more easily comprehended in patents.14 Copyright is profoundly interwined with culture. Many, if not all, copyrighted works can and do shape identities of persons, groups, communities, and nations.15 Copyright is not merely economic; it also embodies "discursive power—the right to create, and control, cultural meanings."16 The State recognizes this not just with copyright law, but also with laws that promote and protect art,17 literature,18 culture workers,19 and the preservation and development of national cultural heritage.20 So-called "factual works" are part of the expression, speech, and the press explicitly protected in our Bill of Rights,21 while artistic creations enjoy State patronage and constitute cultural treasures.22 Neither our Constitution nor our laws intended to create discriminatory classifications of intellectual property based on some arbitrary metric of relative "value."

Petitioner has failed to prove that respondent had violated an economic right granted to a copyright holder.

Since copyright is a statutory right, the rights granted to copyright holders are limited by law.23 No copyright holder has an unlimited monopoly over all forms of exploitation of their works.24 In Joaquin, Jr. v. Drilon:25

Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by the statute, and not simply a pre-existing right regulated by the statute. Being a statutory grant, the rights are only such as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by the persons, and on terms and conditions specified in the statute.26 (Citation omitted)

In Section 177, the Intellectual Property Code enumerates the exclusive rights of a copyright holder:

These rights are distinct from each other, as shown by the definitions of some of the acts in Section 171, including "communication to the public," "public performance," "rental," and "reproduction."

The exact right infringed is an essential determination in any copyright infringement case; otherwise, the defendant cannot raise the adequate defenses necessary to rebut the infringement claims. Moreover, plaintiffs and complainants should not be allowed to take a "shotgun" approach in their allegations; they must with certainty and specificity describe the alleged infringing act relative to one of the copyright holder's enumerated rights, appropriate to the type of copyrighted work allegedly infringed.

Here, petitioner alleges that the economic right violated by respondent is the right of "public performance of the work," as defined in Subsection 171.6:27

171.6. "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[.]

To be clear, the works allegedly infringed in this case are not sound recordings, but musical compositions. The Intellectual Property Code separates the copyright over the composition and the sound recording in which a performance of the composition is fixated. The law provides for the concept of "fixation" of performances of musical compositions in sound recordings:

Fixations of sounds in the form of sound recordings28 are governed by Chapters XII and XIII of the Intellectual Property Code, which provide for performers' rights, the moral rights of performers, and the rights of producers of sound recordings. One exclusive right of performers is to authorize the broadcasting or communication of their performance to the public,29 while producers have the exclusive right to authorize the communication of the sound recording in a like manner as Subsection 171.3.30 When a sound recording is used directly for broadcasting or other communication to the public, then the performer and producer are entitled to compensation:

SECTION 209. Communication to the Public. — If a sound recording published for commercial purposes, or a reproduction of such sound recording, is used directly for broadcasting or for other communication to the public, or is publicly performed with the intention of making and enhancing profit, a single equitable remuneration for the performer or performers, and the producer of the sound recording shall be paid by the user to both the performers and the producer, who, in the absence of any agreement shall share equally.

By its own admission, petitioner represents "composers, lyricists, and music publishers."31 Those composers, lyricists, and music publishers hold the copyright to the musical compositions only. Unless they are also the performers of the compositions, they do not hold the rights to the sound recordings where performances of their compositions are fixed.

The performance of a musical composition is typically executed using human artists, either directly with voices, or by means of instruments or other devices that represent or interpret the composition. One example of a "public performance" of a musical composition is Filipino Society of Composers, Authors and Publishers, Inc. v. Tan,32 where the respondent hired a combo of professional singers to play and sing certain musical compositions inside his restaurant. Fixation of the performance may or may not take place. On the other hand, the public performance of a sound recording requires the fixation or embodiment of the sound to "[make] the recorded sounds audible" as stated in Subsection 171.6.

Thus, the clause in Subsection 171.6 pertaining to sound recordings does not apply when the alleged infringed work is a musical composition not embodied in a sound recording, unless the copyright holder can allege and prove that they also hold the copyright over the sound recordings. And even if, regardless of ownership of the two, the act of publicly performing a sound recording constitutes a public performance of the underlying musical composition, then the clause in Subsection 171.6 must be directed to the entity that actively made the recorded sounds audible to the public, as defined in the clause.

Even then, the entirety of this final clause must be considered. A sound recording and its underlying musical composition must be publicly performed in a manner that excludes the need for communication described in Subsection 171.3—that is, by wire or wireless means in such a way that members of the public may individually decide the time and place of their access.

The sound recording clause in Subsection 171.6 is a series of conditions, all of which must be met for the act to be considered a public performance. The absence of even one condition must mean that either a different right has been infringed, or no right has been infringed at all.

In this case, respondent's acts are not within the scope of a "public performance" of a musical composition. It and its employees did not perform the musical compositions either directly, using the human voice, or through devices such as musical instruments, or a combination of both. It was not in any way involved in the performances of the musical compositions, and a subsequent embodiment of the performances in sound recordings. It did not create the broadcast programming in which the sound recordings were included. It did not transmit the radio waves in which the programming was contained. Apart from the radio device itself and perhaps some rudimentary amplification, it did not introduce further processing into the radio waves that it received. At the very least, the use of wire or wireless means, as will be discussed below, precludes respondent's acts from coverage under Subsection 171.6.

Likewise, I disagree with the majority's findings that respondent committed "an unauthorized communication of [the] copyrighted music to the public[.]"33 Subsection 171.3 of the Intellectual Property Code as amended, defines what "communication to the public" is:

171.3. "Communication to the public" or "communicate to the public" means... the making of a work available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them[.]

For there to be a communication to the public, the person must be the one that made the work available to the public by wire or wireless means. Moreover, it should be available in a way that members of the public may access the works from a place and time they individually chose.

In this case, the entity that made the musical compositions available to the public in the way described in Subsection 171.3 is not respondent, but the radio station or stations—the broadcaster—that transmitted the sound recordings in which the performances of the compositions were fixed. respondent was merely a "member of the public," able to access the work at a chosen place—the restaurant—and time.

Notably, petitioner has executed agreements with entities for the collection of royalty payments for the use of its members' works. One such entity is the Kapisanan ng mga Brodkaster ng Pilipinas,34 a nongovernment, nonprofit organization for broadcast media of television and radio.35 The license serves as a form of permission, where the broadcaster compensates the composer after being allowed to exercise the composer's rights to exclusively communicate their work to the public.36 Compensation is determined by the number of compositions played within a certain period of time,37 with the broadcaster reporting its usage38 and petitioner doing its own monitoring.

If the broadcaster's use of the musical compositions is unlicensed, then the broadcaster should be made liable for infringing the composer's right to exclusively communicate their work to the public. Members of the public may also be liable under the Intellectual Property Code, as amended, if they benefited from the broadcaster's direct infringement, provided that they had notice of the infringing activity and the right and ability to control the direct infringer's activities,39 and the secondary infringement was committed after the pertinent amendments to the Code.

If the broadcaster's use of the musical compositions is with a license, then the license's terms must be examined to determine the metes and bounds of the sanctioned use. If the use exceeds the stipulated bounds, then the broadcaster should be made liable for breach of contract, or in the case of a Kapisanan ng mga Brodkaster ng Pilipinas member, memorandum of agreement.

Meanwhile, the relationship between a broadcaster and its listener is one of medium and audience. The radio-listening public, as audience, can choose the time or place when they receive the broadcast, and on what device and at a volume of their preference. However, they generally have no input on what particular musical compositions or sound recordings are being played unless the station solicits requests—and even then, the request is only a suggestion that a station may accept or ignore. For commercial private stations, audiences are also recipients of advertising used to fund operations, while simultaneously being "products" sold to advertisers to entice them to place commercials as part of the stations' programming.40

But here, the crux of the matter is the legal tie between the copyright holder and the recipient of electromagnetic wavelengths—radio waves—transmitted by the broadcaster. Certainly, it cannot be based on the contract between the composer (or the composer's representative) and the broadcaster. In our civil law, only parties to a contract are bound to it, unless privity is proved.41 Here, no privity is alleged, much less established. There is no claim that any broadcaster exceeded the terms of use of the musical compositions it included in its programming. The broadcaster that facilitated the transmission of the compositions to respondent is not even a party to this case.

In essence, petitioner alleges that, when respondent's employees used a radio receiver for its usual and intended purpose—to receive electromagnetic wavelengths—and amplified free-to-air programming from a broadcaster within respondent's establishments, and that programming happened to include musical compositions, respondent committed copyright infringement, regardless of the existence and terms of a valid license granted to that broadcaster. What the majority does here is frame the acts of lawfully receiving and amplifying transmitted radio waves as an exploitation of a work that the copyright holder can control.

Respondent's acts should be differentiated from infringing acts such as "interception without authority," which involves the unauthorized capture of satellite signals, or "free transmission," which is the exhibition of infringing materials.42 Respondent was not alleged to have unlawfully intercepted the signals being transmitted by the broadcaster. The facts also do not show that the programming itself contained infringing materials such as unauthorized fixations of performances of the musical compositions.

The Intellectual Property Code takes great pains to create nuances in copyright law, with due regard for the complexities of the modes of creation and distribution of original intellectual creations in the literary and artistic domain, that should not be hastily collapsed.

Here, due to the characteristics of the copyrighted works relative to the rights that may be exercised, respondent's alleged infringing acts are not a public performance or a communication to the public, as contemplated in the Intellectual Property Code. Further, no other exclusive right enumerated in Section 171 was alleged to have been infringed. Therefore, this Court must find that no copyright infringement had taken place in this case. Copyright holders must not be allowed to extend the scope of protection to their works beyond the statutory rights granted to them, and courts should be wary should they attempt to do so.

To arrive at its conclusions regarding the scope of public performance, the majority heavily relies43 on United States copyright caselaw, namely, the cases of Buck v. Jewell-LaSalle Realty, Co.,44 Twentieth Century Music Corporation v. Aiken,45 and Broadcast Music, Inc. v. Claire's Boutiques, Inc.,46 based on the rationalization that United States copyright law defines "public performance" similarly as Philippine law.47 Hence, the majority essentially says that the Philippine Legislature's intent when it passed the Intellectual Property Code may be derived from foreign jurisprudence.48

This rationalization is unsupported by a textual reading of the Intellectual Property Code.

Those American cases were decided based on the United States' copyright laws: the Copyright Act of 1909, and Title 17 of the United States Code, as amended, pursuant to Article I, Section 8 of the United States Constitution.49 These copyright laws include public performance rights; however, the definition of public performance is substantially different from the one in the Intellectual Property Code. Mechanical licensing over musical compositions in the Copyright Act of 1909 is extensive in ways not found in our Intellectual Property Code:

As early as 1976, public performance was defined in Title 17, Section 101 of the United States Code:

While the definition above has superficial similarities with Subsection 171.6 of the Intellectual Property Code, the latter has clear clauses referring to specific types of works, which are relevant to this case, as I have earlier discussed. The United States caselaw relies heavily on the legislative history and intent of the United States Congress in the development of its domestic copyright law, especially Broadcast Music, which opinion devoted a significant portion of its discussion on legislative pushback to the ruling in Twentieth Century Music. Notably, United States copyright law also does not differentiate between public performance rights and the right to communicate the work to the public, as Philippine laws do.

To emphasize, copyright is a statutory right, the extent of which is defined in the relevant law. In the Philippines, the relevant law is the Intellectual Property Code and other existing Philippine laws. The Intellectual Property Code has provisions that are not in United States copyright law, and those provisions—being part of our legal system—requires our consideration. Our Legislature saw fit to distinguish between public performances and communications to the public, giving them specific definitions. We cannot merely say that the most relevant right is the right to public performance, when our copyright law defines other rights absent in American statute. Otherwise, our laws, and by extension, our courts, will be beholden to interpretations made of foreign laws, by foreign bodies, ignoring the real and material divergences in the legal, political, social, and cultural developments unique to each jurisdiction.

Even if the cases cited by the majority may serve as a basis to guide this Court's interpretation of Subsection 171.6 of the Intellectual Property Code, the factual antecedents of both Buck and Broadcast Music do not squarely align with the facts in this case. The use of the musical composition in Buck was unlicensed not just by the hotel proprietor, but also by the radio station from which the hotel obtained its performances:

Among the programs received are those transmitted by Wilson Duncan, who operates a duly licensed commercial broadcasting station in the same city. Duncan selects his own programs and broadcasts them for profit. There is no arrangement of any kind between him and the hotel. Both were notified by the plaintiff society of the existence of its copyrights, and were advised that, unless a license were obtained, performance of any copyrighted musical composition owned by its members was forbidden. Thereafter a copyrighted popular song, owned by the plaintiffs, was repeatedly broadcast by Duncan, and was received by the hotel company and made available to its guests.50 (Emphasis supplied)

Here, it was not shown that the broadcasts that respondent allegedly performed in public similarly contained unlicensed performances of any musical compositions.

Moreover, both Buck and Broadcast Music did not involve the reception of transmitted radio waves using a single receiver and rudimentary amplification. In Buck, the "public performance" by the hotel proprietor involved "a master radio receiving set which is wired to each of the public and private rooms[,]" and "loudspeakers or headphones" were made available to guests so that they can listen to the performances "throughout the building."51 Meanwhile, a network of "at least 669 receivers and 1,338 speakers"52 across 749 stores53 were the subject of Broadcast Music.

Comparisons54 to the European Union case of Phonographic Performance (Ireland), Ltd. v. Ireland55 and England and Wales Court of Appeal-Civil Division case of TuneIn, Inc. v. Warner Music UK, Ltd. & Anor56 are also inapt. Phonographic Performance, similar to Buck, involved the transmission of sound recordings taken from a central receiver and distributed throughout the bedrooms of a hotel.57 TuneIn concerned Internet radio, a medium that functions wholly differently from terrestrial radio—a fact made clear in the opinion58—and a different regulatory framework, with its own particularities too premature to be discussed at this juncture.

All of those cases are in stark contrast with methods by which respondent allegedly publicly performed the musical compositions. The majority has not shown how the disparate facts could be reconciled to arrive at the same conclusions.

Similarly, the majority's use of the texts produced by the World Intellectual Property Organization to interpret provisions of the Intellectual Property Code59 is highly irregular. In our constitutional order, the task of interpreting Philippine laws is part of judicial power vested in this Court and other courts as may be provided by law.60

There may be instances when the options of a body tasked to administer a treaty are relevant, but only insofar as that opinion is about that treaty. The World Intellectual Property Office's opinions on the Berne Convention may have persuasive effect in our understanding of the Berne Convention, but they cannot be said to have persuasive or moral effect on our interpretation of the Intellectual Property Code.

Article 11 of the Berne Convention does state that authors of musical works have the exclusive right to authorize the public performance and any communication to the public of the performance of their works.61 However, this must be read in conjunction with Article 11bis, which states that the contracting states determine in domestic law the conditions under which the rights of composers to authorize broadcasting rights may be exercised:

The World Intellectual Property Office may opine whether our domestic laws are aligned with our treaty obligations. However, that is for our Legislature to heed when it sees fit to amend or repeal any provision in the Intellectual Property Code or any other law governing intellectual property rights. Courts can also consider the World Intellectual Property Office's opinions when they interpret our treaty obligations vis-à-vis domestic law. But their guidance, unanchored to specific treaty obligations, cannot bind this Court's interpretation of domestic law. Our accession to the Berne Convention did not bestow upon the World Intellectual Property Office any vestige of judicial power.

Radio is a medium for mass communication, enjoyed both in private households and public parks. "Radio signals then and now do not respect political and cultural boundaries—radio signals may and do cross the imagined boundaries of nation and country."62 The ubiquity of radio comes both from the low barriers to access radio frequencies,63 and the historical use of Filipino languages in radio broadcasting. The flexible nature of the medium, as well as its distribution and scale, makes it a "democratic" medium that extends throughout the archipelago,64 especially to demographics for whom mass media could be otherwise inaccessible.65 Radio has been described as "part of Filipino culture":66

During the height of the United States' physical, political, social, and cultural colonization of this country,68 radio's role in popularizing Philippine music cannot be understated:

The American community generally regarded radio as an effective medium for the Americanization of the Philippines, which was an expressed colonial goal. However, American station managers sensed an appetite for Filipino elements in the programming when advertising for Tagalog programs began to increase, so the goal of Americanization came into conflict with the demands of making a profit. As businessmen, station owners and managers understood that satisfying the preferences of listeners created the critical mass of audiences that advertisers sought, which by the early 1930s had become the most important source of income of radio stations. Listeners mailed their requests for musical numbers not only in Tagalog but also in other Philippine languages, and it became the job of the broadcasting manager to find individuals who could perform the requested numbers.

Local songs began to be heard on the air as early as 1929. The director of the National Library Teodoro M. Kalaw wrote that the frequent airplay of local songs increased their popularity to a point where the music sheets of kundiman outsold those of jazz. Kalaw praised radio for what it had done to revive the popularity of Philippine songs and the consequent flowering of local music such as kundiman, balitaw—an extemporaneous poetic debate between a man and a woman that is sung and danced simultaneously—and folk songs.... Some of the more memorable Tagalog compositions that gained wide acceptance through radio were "Dahil sa Iyo" (Because of You), "Ang Tangi Kong Pag-Ibig" (My Only Love), and "Maala-ala Mo Kaya?" (Do You Remember?).69 (Citations omitted)

Incidentally, that period in radio's history also illustrates the difference between public performance and communication to the public of musical compositions: Philippine songs during American colonial times were broadcast either as live in-studio performances or using recordings made with the burgeoning new technology of phonographic recordings.70

When we characterize the usual use of radio as a vehicle for copyright infringement, we greatly diminish its role as a vital medium in the social life of this nation, one that has helped shape great movements in our history71 and is integral to the development of a common yet diverse national identity.72 We impose on radio a scheme of requirements for broadcasting musical works unsupported by law, and on its audience a listening experience fraught with paranoia and uncertainty. At worst, we punish radio for the qualities intrinsic to it as a medium. To avoid further pursuit by petitioner and other collecting societies, those living and working in public spaces may simply turn off their radios, to the detriment of the creator, the medium, and the public.

ACCORDINGLY, I vote to DENY the Petition for Review on Certiorari. The April 19, 2017 Decision and August 3, 2017 Resolution of the Court of Appeals in CA-G.R. CV No. 105430 are AFFIRMED. Respondent Anrey, Inc. committed no copyright infringement in this case.