G.R. No. L-36402 March 16, 1987
FACTS: Plaintiff-appellant is a non-profit association of authors, composers and publishers duly organized under the Corporation Law of the Philippines and registered with the Securities and Exchange Commission. Said association is the owner of certain musical compositions among which are the songs entitled: “Dahil Sa Iyo”, “Sapagkat Ikaw Ay Akin,” “Sapagkat Kami Ay Tao Lamang” and “The Nearness Of You.”
On the other hand, defendant-appellee is the operator of a restaurant known as “Alex Soda Foundation and Restaurant” where a combo with professional singers, hired to play and sing musical compositions to entertain and amuse customers therein, were playing and singing the above-mentioned compositions without any license or permission from the appellant to play or sing the same. Accordingly, appellant demanded from the appellee payment of the necessary license fee for the playing and singing of aforesaid compositions but the demand was ignored.
Hence, appellant filed a complaint with the lower court for infringement of copyright against defendant-appellee for allowing the playing in defendant-appellee’s restaurant of said songs copyrighted in the name of the former.
Defendant-appellee, in his answer, countered that the mere singing and playing of songs and popular tunes even if they are copyrighted do not constitute an infringement.
The lower court, finding for the defendant, dismissed the complaint
ISSUE: whether or not the playing and signing of musical compositions which have been copyrighted under the provisions of the Copyright Law (Act 3134) inside the establishment of the defendant-appellee constitute a public performance for profit within the meaning and contemplation of the Copyright Law of the Philippines;
ISSUE 2: Assuming that there were indeed public performances for profit, whether or not appellee can be held liable therefor.
HELD on ISSUE 1: YES.
Appellant anchors its claim on Section 3(c) of the Copyright Law which provides:
SEC. 3. The proprietor of a copyright or his heirs or assigns shall have the exclusive right:
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(c) To exhibit, perform, represent, produce, or reproduce the copyrighted work in any manner or by any method whatever for profit or otherwise; if not reproduced in copies for sale, to sell any manuscripts or any record whatsoever thereof;
xxx xxx xxx
It maintains that playing or singing a musical composition is universally accepted as performing the musical composition and that playing and singing of copyrighted music in the soda fountain and restaurant of the appellee for the entertainment of the customers although the latter do not pay for the music but only for the food and drink constitute performance for profit under the Copyright Law (Brief for the Appellant, pp. 19-25).
We concede that indeed there were “public performances for profit. ”
The word “perform” as used in the Act has been applied to “One who plays a musical composition on a piano, thereby producing in the air sound waves which are heard as music … and if the instrument he plays on is a piano plus a broadcasting apparatus, so that waves are thrown out, not only upon the air, but upon the other, then also he is performing the musical composition.”
In relation thereto, it has been held that “The playing of music in dine and dance establishment which was paid for by the public in purchases of food and drink constituted “performance for profit” within a Copyright Law.”
Thus, it has been explained that while it is possible in such establishments for the patrons to purchase their food and drinks and at the same time dance to the music of the orchestra, the music is furnished and used by the orchestra for the purpose of inducing the public to patronize the establishment and pay for the entertainment in the purchase of food and drinks. The defendant conducts his place of business for profit, and it is public; and the music is performed for profit (Ibid, p. 319). In a similar case, the Court ruled that “The Performance in a restaurant or hotel dining room, by persons employed by the proprietor, of a copyrighted musical composition, for the entertainment of patrons, without charge for admission to hear it, infringes the exclusive right of the owner of the copyright.”
The defendants’ performances are not eleemosynary. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order is not important. It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere.
In the case at bar, It will be noted that for the playing and singing the musical compositions involved, the combo was paid as independent contractors by the appellant (Record on Appeal, p. 24). It is therefore obvious that the expenses entailed thereby are added to the overhead of the restaurant which are either eventually charged in the price of the food and drinks or to the overall total of additional income produced by the bigger volume of business which the entertainment was programmed to attract. Consequently, it is beyond question that the playing and singing of the combo in defendant-appellee’s restaurant constituted performance for profit contemplated by the Copyright Law. (
HELD on ISSUE 2: Nevertheless, appellee cannot be said to have infringed upon the Copyright Law. The Supreme Court has ruled that “Paragraph 33 of Patent Office Administrative Order No. 3 provides among other things that an intellectual creation should be copyrighted thirty (30) days after its publication, if made in Manila, or within the (60) days if made elsewhere, failure of which renders such creation public property.”
A careful study of the records reveals that the song “Dahil Sa Iyo” which was registered on April 20, 1956 (Brief for Appellant, p. 10) became popular in radios, juke boxes, etc. long before registration (TSN, May 28, 1968, pp. 3-5; 25) while the song “The Nearness Of You” registered on January 14, 1955 (Brief for Appellant, p. 10) had become popular twenty five (25) years prior to 1968, (the year of the hearing) or from 1943 (TSN, May 28, 1968, p. 27) and the songs “Sapagkat Ikaw Ay Akin” and “Sapagkat Kami Ay Tao Lamang” both registered on July 10, 1966, appear to have been known and sang by the witnesses as early as 1965 or three years before the hearing in 1968. The testimonies of the witnesses at the hearing of this case on this subject were unrebutted by the appellant.
Under the circumstances, it is clear that the musical compositions in question had long become public property, and are therefore beyond the protection of the Copyright Law.
JUST IN CASE.. (^_~) 