G.R. No. L-36402 March 16, 1987 Filipino Society of Composers, Authors and Publishers, INC., Plaintiff-Appellant, BENJAMIN TAN, Defendant-Appellee

G.R. No.
L-36402 March 16, 1987
FILIPINO SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS,

INC., plaintiff-appellant,  
vs. 
BENJAMIN TAN, defendant-appellee.
Lichauco, Picazo & Agcaoili Law Office for plaintiff-appellant.
Ramon A. Nieves for defendant-appellee.
PARAS, J.:
An appeal was made to the Court of Appeals docketed as CA-G.R. No.

46373-R * entitled Filipino Society of Composers, Authors, Publishers, Inc., Plaintiff-Appellant v. Benjamin Tan,
Defendant-Appellee, from the decision of the Court of First Instance of Manila, Branch VII in Civil Case No.
71222 ** "Filipino Society of Composers, Authors and Publishers, Inc., Plaintiff v. Benjamin Tan, Defendant," which
had dismissed plaintiffs' complaint without special pronouncement as to costs.
The Court of Appeals, finding that the case involves pure questions of law,
certified the same to the Supreme Court for final determination (Resolution,
CA-G.R. No. 46373-R, Rollo, p. 36; Resolution of the Supreme Court of
February 16, 1973 in L-36402, Rollo, p. 38).
The undisputed facts of this case are as follows:
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, on November 7, 1967, 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 complaint states no

cause of action. While not denying the playing of said copyrighted
compositions in his establishment, appellee maintains that the mere singing
and playing of songs and popular tunes even if they are copyrighted do not
constitute an infringement (Record on Appeal, p. 11; Resolution, CA-G.R.
NO. 46373-R, Rollo, pp. 32-36) under the provisions of Section 3 of the
Copyright Law (Act 3134 of the Philippine Legislature).
The lower court, finding for the defendant, dismissed the complaint (Record
on Appeal, p. 25).
Plaintiff appealed to the Court of Appeals which as already stated certified

the case to the Supreme Court for adjudication on the legal question
involved. (Resolution, Court of Appeals, Rollo, p. 36; Resolution of the
Supreme Court of February 18, 1973, Rollo, p. 38).
In its brief in the Court of Appeals, appellant raised the following

Assignment of Errors:
THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL

COMPOSITIONS OF THE APPELLANT WERE IN THE NATURE OF
PUBLIC PROPERTY WHEN THEY WERE COPYRIGHTED OR
REGISTERED.
II
THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL

COMPOSITIONS OF THE APPELLANT WERE PLAYED AND SUNG IN
THE SODA FOUNTAIN AND RESTAURANT OF THE APPELLEE BY
INDEPENDENT CONTRACTORS AND ONLY UPON THE REQUEST OF
CUSTOMERS.
III
THE LOWER COURT ERRED IN HOLDING THAT THE PLAYING AND
SINGING OF COPYRIGHTED MUSICAL COMPOSITIONS IN THE SODA
FOUNTAIN AND RESTAURANT OF THE APPELLEE ARE NOT PUBLIC
PERFORMANCES FOR PROFIT OF THE SAID COMPOSITIONS WITHIN
THE MEANING AND CONTEMPLATION OF THE COPYRIGHT LAW.
IV
THE LOWER COURT ERRED IN NOT HOLDING THAT THE APPELLEE

IS LIABLE TO THE APPELLANT FOR FOUR (4) SEPARATE
INFRINGEMENTS. (Brief for Appellant, pp. A and B).
The petition is devoid of merit.
The principal issues in this case are 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; and assuming that
there were indeed public performances for profit, whether or not appellee
can be held liable therefor.
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:
xxx xxx xxx
(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." (Buck, et al. v. Duncan, et al.; Same Jewell La Salle Realty
Co., 32F. 2d. Series 367).
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." (Buck, et al. v. Russon No. 4489 25 F. Supp. 317). 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." (Herbert v. Shanley Co.;
John Church Co. v. Hillard Hotel Co., et al., 242 U.S. 590-591). In
delivering the opinion of the Court in said two cases, Justice Holmes
elaborated thus:
If the rights under the copyright are infringed only by a performance where
money is taken at the door, they are very imperfectly protected.
Performances not different in kind from those of the defendants could be
given that might compete with and even destroy the success of the
monopoly that the law intends the plaintiffs to have. It is enough to say that
there is no need to construe the statute so narrowly. 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. The object is a repast in
surroundings that to people having limited power of conversation or
disliking the rival noise, give a luxurious pleasure not to be had from eating
a silent meal. If music did not pay, it would be given up. If it pays, it pays
out of the public's pocket. Whether it pays or not, the purpose of employing
it is profit, and that is enough. (Ibid., p. 594).
In the case at bar, it is admitted that the patrons of the restaurant in

question pay only for the food and drinks and apparently not for listening to
the music. As found by the trial court, the music provided is for the purpose
of entertaining and amusing the customers in order to make the
establishment more attractive and desirable (Record on Appeal, p. 21). 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. (Act 3134 amended by P.D. No. 49, as amended).
Nevertheless, appellee cannot be said to have infringed upon the Copyright

Law. Appellee's allegation that the composers of the contested musical
compositions waived their right in favor of the general public when they
allowed their intellectual creations to become property of the public domain
before applying for the corresponding copyrights for the same (Brief for
Defendant-Appellee, pp. 14-15) is correct.
The Supreme Court has ruled that "Paragraph 33 of Patent Office

Administrative Order No. 3 (as amended, dated September 18, 1947)
entitled 'Rules of Practice in the Philippines Patent Office relating to the
Registration of Copyright Claims' promulgated pursuant to Republic Act
165, 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." (Santos v. McCullough Printing Company, 12 SCRA
324-325 [1964]. Indeed, if the general public has made use of the object
sought to be copyrighted for thirty (30) days prior to the copyright
application the law deems the object to have been donated to the public
domain and the same can no longer be copyrighted.
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. (Ibid, pp. 28; 29 and 30).
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.
PREMISES CONSIDERED, the appealed decision of the Court of First

Instance of Manila in Civil Case No. 71222 is hereby AFFIRMED.
SO ORDERED.
Fernan (Chairman), Gutierrez, Jr., Padilla, Bidin and Cortes, JJ., concur.
Alampay, J., took no part.

G.R. No. L-36402 March 16, 1987 Filipino Society of Composers, Authors and Publishers, INC., Plaintiff-Appellant, BENJAMIN TAN, Defendant-Appellee

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G.R. No. L-36402 March 16, 1987 Filipino Society of Composers, Authors and Publishers, INC., Plaintiff-Appellant, BENJAMIN TAN, Defendant-Appellee

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G.R. No.

L-36402 March 16, 1987

FILIPINO SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS,

Lichauco, Picazo & Agcaoili Law Office for plaintiff-appellant.

Ramon A. Nieves for defendant-appellee.

An appeal was made to the Court of Appeals docketed as CA-G.R. No.

The undisputed facts of this case are as follows:

Plaintiff-appellant is a non-profit association of authors, composers and

On the other hand, defendant-appellee is the operator of a restaurant

Defendant-appellee, in his answer, countered that the complaint states no

Plaintiff appealed to the Court of Appeals which as already stated certified

In its brief in the Court of Appeals, appellant raised the following

THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL

THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL

THE LOWER COURT ERRED IN NOT HOLDING THAT THE APPELLEE

The petition is devoid of merit.

xxx xxx xxx

(c) To exhibit, perform, represent, produce, or reproduce the copyrighted

xxx xxx xxx

It maintains that playing or singing a musical composition is universally

In the case at bar, it is admitted that the patrons of the restaurant in

Nevertheless, appellee cannot be said to have infringed upon the Copyright

The Supreme Court has ruled that "Paragraph 33 of Patent Office

Under the circumstances, it is clear that the musical compositions in

PREMISES CONSIDERED, the appealed decision of the Court of First

Alampay, J., took no part.

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