Royalties

Dear Atty. Nico,

I own a bar and grill restaurant. When our customers dine with us, we normally play background music coming from the radio broadcast through loudspeakers.

One day, I was assessed for license fees by a company, representing composers, authors and publishers that owns public performance rights over the copyrighted musical works of its members. The alleged fees were for the “public performance” of their copyrighted works via radio broadcast.

Are they correct in their assessment, despite the fact that the radio stations have already paid the corresponding royalties? Is radio reception considered as public performance?

I hope you can clarify these legal questions. Thank you and more power!

Joel

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Dear Joel,

In an En Banc decision, the Supreme Court answered both questions in the affirmative.

In the case of Filipino Society of Composers, Authors and Publishers Inc. (FILSCAP) v Anrey Inc., it delved into the meaning of “public performance” as defined under Section 171.6 of the Intellectual Property Code of the Philippines, as amended:

171.6 “Public Performance”… 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 acquaintance are or can be present, regardless 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.

A “sound recording” means the fixation of 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; while a “fixation” is defined as the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device.

We believe that the act of playing radio broadcasts containing copyrighted music through the use of loudspeakers (radio-over-loudspeakers) is in itself, a performance.

In the American case of Buck, et al. v Jewell-LaSalle Realty Co. (Jewell), the SCOTUS reasoned that a reception of radio broadcast and its translation include audible sound was not a mere playing of the original program, but was a reproduction, since complicated electrical instrumentalities were necessary for its reception and distribution… Then came the case of Twentieth Century Music Corp. v Aiken (Aiken), which temporarily abandoned the concept that radio reception is a performance. It stated that those who listen do not perform, therefore do not infringe.

The court used the analogy that if a radio station “performs” a musical composition when it broadcasts it, then it would require the conclusion that those who listen to the broadcast through the use of radio receivers do not perform the composition.

Finally, the case of Broadcast Music Inc. v Claire’s Boutiques Inc. (Claire’s) reverted back to the same rationale laid down in Jewell. As it stands now, an establishment that plays radio-over-loudspeakers is said to have publicly performed them. It will be noted that this was decided based on how the present US copyright law defines the term, “public performance,” which is similarly worded to our own definition of the said term.

Thus, the intention really is to treat a reception of a radio broadcast containing copyrighted music as a performance.

A radio reception creates a performance separate from the broadcast. This is 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 doctrine was first conceived in Jewell wherein the SCOTUS noted that the playing of a record is “a performance under the Copyright Act of 1909,” and that “the reproduction of the radio waves into audible sound waves is also a performance.”

We also believe that the act of playing radio broadcasts containing sound recordings through the use of loudspeakers amounts to an unauthorized communication of such copyrighted music to the public, thus, violates the public performance rights of FILSCAP. This conclusion is in harmony with the guidance released by the World Intellectual Property Organization (WIPO) to the Berne Convention for the Protection of Literary and Artistic Works, to which the Philippines is a signatory since 1951. The Philippines is also a signatory to the Convention establishing the WIPO as well as the Trade-Related Aspects of Intellectual Property Rights Agreement which incorporated by reference the provisions on copyright from the Berne Convention.

Applying the foregoing jurisprudence to the abovementioned facts, it can be said that the you may be liable for alleged copyright infringement by reason of your usage of radio broadcast as background music for your restaurant.

Atty. Nico A. Antonio