“Music is intangible, but its benefits are real.”

— Justice Zalameda,
FILSCAP v. Anrey, Inc. (2022)

In recent years, the Supreme Court decided two landmark decisions — FILSCAP v. Anrey, Inc. and COSAC v. FILSCAP — which now lay the foundation for interpreting rights involving communication to the public and public performance of copyrighted musical works.

At the constitutional level, the State is mandated to protect the rights of creators, including artists. Article XIV, Section 13 of the 1987 Constitution provides: “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.”

Republic Act No. 8293, or the Intellectual Property Code of the Philippines (IP Code), implements this mandate through the recognition of copyright, which grants owners a bundle of rights over their literary and artistic works.

Although the law does not expressly define the term “copyright,” its meaning has been explored through jurisprudence. Copyright has been described as “an intangible, incorporeal right granted by statute to the author or originator of certain literary or artistic productions, whereby [the author] is invested, for a specific period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.” (Juan v. Juan [2017], Kensonic v. Uni-Line Multi-Resources [2018], FILSCAP v. Anrey, Inc. [2022]). The copyright owners thus have the exclusive rights to communicate to the public or perform in public their copyrighted music. The owners can also opt to allow others to carry out such communication or public performance, normally for a fee, which arrangement is called a licensing agreement.

Rights emanating from a copyrighted work are classified into two categories: 1.) economic rights, which jurisprudence defines as “the right of the owner to derive some sort of financial benefit from the use of [their] work”; and 2.) moral rights, which “refer to the non-economic interests of the owner of copyright” or protection of the owner’s reputation and attribution to the work. Entering into a license agreement is a typical exercise of economic rights.

Going into the landmark decisions of the Supreme Court, in FILSCAP v. Anrey, Inc. (G.R. No. 202026, June 15, 2022), the Court addressed two core questions:

First, whether an establishment’s act of playing radio broadcasts containing copyrighted music constitutes a “public performance,” and;

Second, whether establishments can freely play radio broadcasts in their premises for the pleasure of their customers, since the radio station already has a license to play music, i.e., the radio station is allowed by the copyright owner to play the music on air.

The Court answered the first question in the affirmative. Citing Section 171.6 of the IP Code and international instruments such as the World Intellectual Property Office (WIPO) Guide to the Berne Convention, the Court stated that “public performance” includes making recorded sounds audible to persons beyond one’s private sphere. Here, the Court introduced the concept of a “new public,” referring to listeners or audiences not originally contemplated by the author when consent was given, or those outside a person’s normal circle of family and closest social acquaintances.

On the second issue, the Court adopted the “doctrine of multiple performances,” ruling that a commercial establishment’s retransmission of a licensed radio broadcast (i.e., playing the radio in their premises for their customers) constitutes a separate public performance which requires its own license separate from that of the radio station. Thus, with this decision, an establishment cannot freely play a radio broadcast on its premises for the pleasure of its customers when copyrighted music is involved, unless it obtains its own license.

In COSAC v. FILSCAP (G.R. No. 222537, Feb. 28, 2023), the Supreme Court addressed a related issue: whether playing copyrighted background music and hiring performers to play copyrighted songs without a license amounts to infringement.

In resolving the case, the Court applied the “doctrine of vicarious infringement.” It held that establishments playing sound recordings as background music without a license are liable for direct infringement. In addition, establishments that permit live performances of copyrighted music by hired bands or artists without securing the appropriate licenses are likewise liable as secondary infringers.

In both cases, the Court emphasized that the use of copyrighted music does not fall under “fair use,” as these establishments derived profit and commercial benefit from the performance of music — whether as background music, radio broadcasts, or live performances.

These cases align with the constitutional and statutory framework designed to protect artists, creators and copyright owners. These decisions underscore a clear policy direction: the protection of copyrighted musical works is not merely aspirational but enforceable.

Music may be intangible, but the benefits from music are clearly tangible, even for copyright owners.

This article is only for general informational and educational purposes and is not offered as and does not constitute legal advice or opinion.

Micah Cheyenne M. Ecarma-Vargas is an associate of the Intellectual Property department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).