PHILIPPINES Trends and Developments Contributed by: Patricia A O Bunye, Anica Angela G Gomez, Angel Rae N Balbin and Bianca Marie J Angela M Rañola, Cruz Marcelo & Tenefrancia
Inc (FILSCAP) to collect royalties over copyrighted works of its member artists. This case arose from the refusal of Anrey Inc (“Anrey”), the operator of two restaurants in Baguio, to pay annu - al licence fees to FILSCAP for the unauthorised use of its members’ copyrighted music. Anrey denied playing any copyrighted music within its establishments and averred that its establishments were merely playing music being broadcast over the radio, whose royal - ties have already been paid for by the radio stations. In deciding whether the unlicensed playing of radio broadcasts as background music in dining areas of a restaurant amounts to copyright infringement, the Supreme Court ruled that the act of playing radio broadcasts containing copyrighted music through the use of loudspeakers is, in itself, a performance sepa - rate from the radio broadcast, and is thus entitled to its own protection. According to the Supreme Court, “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”. Accordingly, it is immaterial if the broadcasting station has been licensed by the copyright owner. The reception of the broadcast becomes a new public performance requir - ing separate protection. Further, the Supreme Court held that radio reception transmitted through loudspeakers to enhance profit does not constitute, and is not analogous to, fair use. The circumstances under which the copyrighted music was being played weighed against Anrey Inc’s argu - ment of fair use. In this case, the copyrighted songs in their entirety were being played publicly through - out Anrey Inc’s establishments. The Supreme Court explained that “while Anrey does not directly charge a fee for playing radio broadcasts over its speakers, such reception is clearly done to enhance profit by providing entertainment to the public, particularly its customers, who pay for the dining experience in Anrey’s restaurants”. This commercial use, according to the Supreme Court, “is beyond the normal exploita - tion of the copyright holder’s creative work”.
In Icebergs Food Concepts, Inc. v FILSCAP , G.R. No 256091 (12 April 2023), the Supreme Court urged Congress to consider allowing exemptions for small businesses in copyright infringement cases. The Supreme Court, citing its earlier ruling in FILSCAP v Anrey, Inc. , supra, found Icebergs liable for copyright infringement for playing copyrighted musical works of FILSCAP in its restaurants without consent. The Supreme Court noted that this ruling would create a ripple effect such that all businesses, including small businesses that play music through radios, would also be subject to suits for copyright infringement. Thus, the Supreme Court recommended that Congress consider implementing a similar set of exemptions for small businesses in the Philippines following the “three-step test”, which provides exemptions to the copyright holders’ rights if they: • cover only certain special cases; • are not in conflict with the normal exploitation of the work; and • do not unreasonably prejudice the legitimate inter - ests of the copyright holder. In Filipino Society of Composers and Publishers v Wolfpac Communications, Inc. , G.R. No. 184661 (25 February 2025), the Supreme Court addressed a novel intersection between copyright protection and con - sumer access to digital media. At issue was whether the act of allowing consumers to listen to 20-second audio samples of ringback tones before purchase constitutes a “public performance” or “communica - tion to the public”, and whether such use infringes upon copyright or qualifies as fair use under Section 185 of the Intellectual Property Code of the Philip - pines. The case stems from Wolfpac Communications, Inc (“Wolfpac”), a mobile content distributor that market - ed downloadable ringback tones through telecommu - nications platforms such as Smart Communications. Users of the Smart website were permitted to listen to 20-second previews of songs, referred to as a “pre- listening function”, prior to downloading the ringtones.
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