G.R. No. 188933 - Concurring Opinion

G.R. No. 188933, February 21, 2023,
♦ Decision, Leonen, [J]
♦ Concurring Opinion, Caguioa, [J]
♦ Concurring Opinion, Lazaro-Javier, [J]
♦ Separate Concurring Opinion, Zalameda, [J]
♦ Concurring Opinion, Singh, [J]

PHILIPPINE HOME CABLE HOLDINGS, INC., PETITIONER, VS. FILIPINO SOCIETY OF COMPOSERS, AUTHORS & PUBLISHERS, INC., RESPONDENT.

I concur in the ponencia. My Opinion in Filipino Society of Composers, Authors and Publishers, Inc. v. Anrey, Inc.1 is not controlling. In Anrey, my Opinion is that respondent did not appropriate the rights of public performance and communication to the public when they turned on the radio within the hearing distance of their customers. In contrast, herein petitioner was clearly involved in the communication to the public of copyrighted songs as defined in the Intellectual Property Code –

171.3. 'Communication to the public' or 'communicate to the public' means any communication to the public, including broadcasting, rebroadcasting, retransmitting by cable, broadcasting and retransmitting by satellite, and includes 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;

202.9. "Communication to the public of a performance or a sound recording" means the transmission to the public, by any medium, otherwise than by broadcasting, of sounds of a performance or the representations of sounds fixed in a sound recording. For purposes of Section 209, "communication to the public" includes making the sounds or representations of sounds fixed in a sound recording audible to the public.

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.

Petitioner's act of transmitting the videokes by cable or broadcast is expressly covered by the definitions quoted above.1aшphi1

My only misgiving about this case, which is not the ponente's fault, is the absence of a ruling on how to measure the amount of damages for infringements of this kind. None of the parties raised any issue about damages apart from their arguments on liability. I myself have no suggestion to offer since I do not wish to appear as lawyering for either of them. This state of affairs of our jurisprudence, however, must not stand for long as we strive to break out of this inertia.

Thus, I vote to deny the petition and affirm the decision of the Court of Appeals.