G.R. No. 188933 - Separate 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.

The case presents an opportunity to make further distinctions between two related but still distinct economic rights of an author: 1) public performance and 2) right to communicate the work to the public.1

The case of FILSCAP v. Anrey, Inc. (Anrey case)2 was the very first case to make a distinction between these two rights.

In Anrey, what was complained as infringing is the act of playing radio broadcasts by a commercial establishment using loudspeakers (radio-overloudspeakers). The Court En Banc applied the accumulation of legislative history, treaties, international conventions, and other secondary sources in determining that the specific right infringed is FILSCAP's right to public performance, and not the right to "communication to the public."

We made an exhaustive discussion on this score but to sum it all up, there is an overlap between the right to public performance and the right to communicate to the public, with the right to public performance being the broader of these rights. In fact, the Berne Convention considered the right to communicate the protected work publicly, as part of the public performance rights of an author, thus:

Originally, the Berne Convention did not recognize public communication as a right separate and independent from the author's right to public performance. This is clear from the World Intellectual Property Organization (WIPO) Guide to the Berne Convention which states that the author's right to public performance is split into two: 1) the right to authorize the public performance of his work; and 2) the right to communication to the public of a performance of the work.

In fact the Berne Convention only recognizes four (4) exclusive rights of an author: 1) translation; 2) reproduction; 3) public performance; and 4) broadcasting.3 The Berne Convention does not mention the right to public communication as a separate and independent economic right of an author. Not that such right does not exist. What it means is, generally, the right to public communication would, depending on its use, fall under the author's right to public performance OR the right to broadcasting. This is the exact reason why both provisions of the Berne Convention on public performance and broadcasting contain references to public communication:

The confusion lies on the import of Subsection 177.7 of the Intellectual Property Code (IPC), which mentions the "other communication to the public of the work" as one of the economic rights of an author. Specifically, if such right is supposed to be subsumed under either the right to public performance or broadcasting. In order to understand this better, it is necessary to look into the historical details of the provision's origin.

In 2002, the Philippines became a member of WIPO. As a member, the State had to adhere to the WIPO Copyright Treaty (WCT). The Treaty led to changes in our copyright law. In particular, Section 171.3 of Republic Act No. (RA) 82934 was lifted directly from Article 8 of the WCT.5 Article 8 reads:

But even without such amendment, the right to communicate to the public has been recognized, as part of the public performance right. So what exactly is the purpose of Article 8 of the WCT. Apparently, it was introduced as a band-aid solution to cover situations in the ever-growing and fast-paced digital environment. The explanatory note to the WCT strengthens this point:

As a result of the accumulation of treaties, international conventions, legislative history and other secondary sources, We made the following distinctions: if "public communication" was done using traditional forms such as radio-over-loudspeakers, then the right involved is the public performance right under Sec. 177.6. On the other hand, if the communication was done in the digital landscape such as the Internet, then the right violated is the separate economic right to publicly communicate the work under Sec. 177.7.

To illustrate, a streaming service in the United Kingdom (UK) named TVCatchup offers Jive streams of free-to-air UK television broadcasts over the Internet. The UK High Court referred to the Court of Justice of the European Union (CJEU) whether TVCatchup's streaming activities were a communication to the public. The CJEU held that the retransmission of protected works and broadcasts over the Internet was a new communication to the public and therefore must be authorised by the authors concerned.7

Another illustrative case is Nils Svensson v. Retriever Sverige AB.8 The applicants, all journalists, wrote press articles that were published in the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. Retriever Sverige operates a website that provides its clients, according to their needs, with lists of clickable Internet links (hyperlinks) to articles published by other websites. Those articles were freely accessible on the Göteborgs-Posten newspaper site. And when you click those links, you get redirected to another site in order to access the work in which he is interested. The CJEU held that the activity of linking to third party works on the internet is described as an act of public communication, irrespective of the type of link (the judgment makes no distinctions) users may have before them.

Unauthorized links to radio streams also violates the right to communication to the public. In TuneIn Inc. v. Warner Music UK Ltd. & Anor9 the claimants either represent, own, or hold exclusive licenses to copyrights in sound recordings of music. On the other hand, defendant TuneIn is a company that operates TuneIn Radio, which enables users in UK to access radio stations from around the world by broadcasting the same on the internet. The England and Wales Court of Appeals (CA) clarified that every transmission or retransmission of the work by a specific technical means must be individually authorized by the copyright holder. Further, for purposes of determining whether there is "communication," the appellate court explained that the work must be made available to the public in such a way that they may access it, whether or not they actually access the work. It confirmed that there is communication to the public in the "transmission of television and radio broadcasts, and sound recordings included therein, to the customers of hotels, public houses, spas, café-restaurants and rehabilitation centres by means of television and radio sets". As TuneIn is a different kind of communication targeted at a different public in a different territory, the court concluded that the rights of the copyright holders in this case were violated.

What is complained as infringing in this case is the cablecasting of videoke laser disc recordings10 done by Philippine Home Cable Holdings, Inc. (Home Cable), pursuant to an agreement with Precision Audio Videoke Service. These videoke recordings were played by Home Cable in three of its cable channels (the Home Cable Case).

The IPC does not specifically define cablecasting but secondary sources define the act as:

"[C]ablecasting" means the transmission by wire for public reception of sounds, images or sounds and images or of the representations thereof. Transmission by wire of encrypted signals is "cablecasting" where the means for decrypting are provided to the public by the cablecasting organization or with its consent. "Cablecasting" shall not be understood as including transmissions over computer networks or any transmission where the time and place of reception may be individually chosen by members of the public; x x x.11

In Anrey, what was involved is a secondary transmission of a radio broadcast and We perceived such secondary transmission as a public performance. On the other hand, the present Home Cable case involves an original transmission made by Home Cable. For the ponente, cablecasting falls under the right to public communication for this amounts to making that work accessible to members of the public from a place or time individually chosen by them, which is the very essence of the "communication to the public" right in the IPC.12

Perhaps this statement is taken from the 1997 version of Sec. 171.3 of the IPC which states:

"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.

Due to its very restricted application, Member States has regarded this as the restricted right of "making available to the public" the copyrighted material. In the U.S., this right is reserved to control interactive, on-demand dissemination of copyrighted works over the Internet, including provision of access to streams or downloads.13 Also, the European Union, under Recitals 24-27 of Article 3, Directive 2001/29/EC provide a background on this right:

However, We noticed that the ponencia used the disjunctive word "OR" when the law used the conjunctive word "AND" in the phrase "from a place and time individually chosen by them." This has the tendency to significantly change the meaning of the provision.

The provision uses the word "AND" which implies that the transmission of the protected work should be accessible by the public with discretion not just to the place, but also discretion to the time. This for me is the exact essence of the "communication to the public" right under RA 8293, which should be limited to On-Demand platforms (such as Netflix, Spotify, or Youtube) since these platforms offer discretion to access communication of the work at a place AND time of their own choosing. It is only the Internet that makes such discretion possible.

Even the Intellectual Property Office of the Philippines (IPOPHIL) recognizes such distinction. In an official publication issued by the IPOPHIL for the WIPO, the IPOPHIL enumerates public performance and public communication right, on the one hand; and the making of the works available on the Internet for on-demand access by the public, on the other; as among the economic rights of the copyright owner.14

Finally, the ponencia made reference to the definition under RA 10372 of "communication to the public" which includes "broadcasting, rebroadcasting, retransmitting by cable, broadcasting and retransmitting by satellite."15

Following the above disquisitions, I agree with the ponente that the right infringed is the "communication to the public" right. If we are to harmonize the definition of "communication to the public" under RA 8293 with the present definition of the term under RA 10372,16 then it may very well be argued that the modern day formulation of the term should prevail.1aшphi1

The definition of the term "communication to the public" under RA 10372 is the result of the State's joint accession to the WCT17 and the WIPO Performances and Phonograms Treaty (WPPT)18 in 04 July 2002. Although RA 10372 took effect as an amendment to the IPC only in 22 March 2013,19 both the WCT and the WPPT were concluded in 1996. As the ponencia states, in a sense both treaties were integrated in our domestic legislation even before the amendment to the IPC was made by RA 10372.20

In fine, the acts constituting "communication to the public" under RA 10372 reflects the true scope of the "communication to the public" right. Having said this, I would like to tread on this very carefully so as not to undesirably overexpand the coverage of this right.

There are only five variations in which the expanded "communication to the public" covers: 1) broadcasting; 2) rebroadcasting; 3) retransmitting by cable; 4) broadcasting and retransmitting by satellite; and 5) making the 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. The fifth is known as the limited right of "making the work available" to the public the coverage of which have been sufficiently discussed above.

Broadcasting has been defined by RA 10372 (which was lifted from the WPPT) as the transmission by wireless means for the public reception of sounds or of images or of representations thereof such transmission by satellite is also "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent.21 The last phrase should be interpreted as retransmitting by satellite under the fourth enumeration.

Our law does not define rebroadcasting but Article 3(g) of the Rome Convention defines "rebroadcasting" as the "simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization." We acceded to the Rome Convention on 25 June 1984.22 Likewise the Rome Convention is integrated in the WPPT. Rebroadcasting under the Rome Convention is limited to over-the-air transmissions.

Retransmitting by cable or cable retransmission is the communication to the public by wire of a broadcast by an organization other than the original one.23 Cable-originated transmissions or cablecasting is not specifically enumerated but some states accord them protection the same way as broadcasting.24

Following a rundown of these definitions, how this impacts the Court's ruling in the Anrey case is completely negligible. Radio-over-loudspeakers, for obvious reasons, does not amount to broadcasting, rebroadcasting, retransmission by satellite. Neither does it amount to retransmission by cable. Although it uses cable wires, it does not amount to cable retransmission. Besides, the Berne Convention sees this as a separate and distinct act, apart from broadcasting, and rebroadcasting.25

From the foregoing disquisitions, I humbly submit my vote to DENY the Petition.