I

' '

EN BANC

G.R. No. 233918 (Filipino Society of Composers, Authors and

Publishers, Inc., v. Anrey, Inc.)

Promulgated:

August 9, 2022

. DISSENT

LAZARO-JAVIER, J:

I dissent.

The facts are undisputed.

Petitioner Filipino Society of Composers, Authors and Publishers Inc.

(FILSCAP) is a non-profit society of composers, authors, and publishers
which owns public performance rights over the copyrighted musical works of
its members. It also owns the right to license public performance rights in the
Philippines of copyrighted foreign musical works of its members and affi Ii ate
performing rights societies abroad. Such rights proceed from the contracts it
has entered into with various composers, authors and publishers, and record
labels, as well as the reciprocal agreements it has with affiliate foreign
societies authorizing FILSCAP to license the public performance in the
Philippines of musical works· under their repertoire. These agreements
deputized FILSCAP to enforce and protect the copyrighted works of its
members or affiliates by issuing licenses and collecting royalties and/or
license fees from anyone who publicly exhibits or performs music belonging
to FILSCAP's worldwide repertoire.

These rights, however, are being challenged by respondent Anrey, Inc.

(Anrey) when they were assessed by FILSCAP to pay annual license fees for
the public exhibition of the copyrighted works ofits members. The assessment
came after a representative of FILSCAP, Ms. Ivy Labayne, conducted several
days (between the months of July and September 2008) of monitoring over
the chain of restaurants owned by Anrey in Baguio City.

FILSCAP sent several letters to the establishments concerned,

informing them that an unauthorized public performance of copyright music
amounts to infringement and urging them to secure licenses from FILSCAP
and avoid prosecution. These demands fell on deaf ears, thus, FILSCAP filed
a Complaint for Copyright Infringement against Anrey before the Regional
Trial Court (RTC) in Baguio City, asking the court to award the following: a)
Dissent 2 G.R. No. 233918

r'l 8,900.00 as compensatory damages; b) r'300,000.00 as nominal damages;

c) r'l00,000.00 as exemplary damages; and d) r'S0,000.00 as attorney's fees
and litigation expenses.

In its Answer, Anrey denied playing any copyrighted music within its
restaurants. It claimed that the restaurants it had been operating randomly
and passively sounded off whatever was already being broadcasted on the
radio their individual store was tuned in. In the alternative, Anrey argued that
assuming it was sounding off copyrighted music inside its restaurants, the
radio station had already paid the corresponding royalties, thus, FILSCAP
would be recovering twice: from the station, and from it, simply because it
tuned in on a broadcast intended to be heard by the pub]ic. Anrey maintained
as well that even if the reception were to be considered a performance, this act
would not qualify as a public performance since the broadcast was played for
the benefit of its staff and not for its customers.

The trial court dismissed FILSCAP's amended complaint for lack of

merit. It cited Section 184 (i) of Republic Act No. (RA) 8293 in excepting
Anrey from copyright infringement, such that a public performance by a club
or institution for charitable or educational purposes, whose aim is not profit
making and does not charge admission fees, is not liable for copyright
infringement.

On appeal, the Court of Appeals affirmed. In denying the appeal, the

appellate court relied on the copyright laws of the United States of America
(U.S.) exempting small business establishments under the homestyle
exemption clause.

The Majority finds merit in the petition and rules to reverse the
aforesaid decisions. It holds, as follows:

• Economic rights refer to the right of the owner to derive some

sort of financial benefit from the use of his/her work. The
economic rights of an owner are enumerated under Section I 77
of RA 8293, one of which refers to the exclusive right of an
owner to prevent the public performance of the work.

• In order for copyright holders ·to claim for infringement, two

elements must be proven: 1) they must show ownership of a valid
copyright; and 2) they must demonstrate that the alleged
infringers violate at least one economic right granted to copyright
holders under Section 177 of RA 8293. A third element may be
added and that is the act complained of does not fall under any
of the limitations on copyright under Section 184 or amounts to
fair use of a copyrighted work under Section 185.
Dissent 3 G.R. No. 233918

• FILSCAP has the right to sue for copyright infringement. The

mechanics behind FILSCAP's role is plain and simple.
FILSCAP gets assigned the copyright by its owners. It also enters
into reciprocal agreements with foreign societies. Being the
assignee of the copyright, it then collects royalties which come
in the form of license fees from anyone who intends to publicly
play, broadcast, stream, and to a certain extent (reproduce) any
copyrighted local and international music of its members and the
members of its affiliate foreign societies.

• There should really be no question as to FILSCAP's authority to

sue on behalf of its members. From the foregoing, it is evident
that the first element of copyright infringement has been
satisfied: that FILSCAP has the authority to collect royalties
and/or license fees and sue for copyright infringement. As an
assignee of copyright, it is entitled to all the rights and remedies
which the assignor had with respect to the copyright.

• The genuine issue is one.of law, i.e., whether the reception of a

public radio station's broadcast of music and the passive playing
of this music via public radio broadcast and reception as
background music in a restaurant owned by Anrey amounts to a
violation of Section 177.6 of RA 8293, or the right of public
performance of the work of the copyright owner or the latter's
assignee FILS CAP.

• The answer is in the affirmative. A sound recording is publicly

performed if it is made audible enough at a place or at places
where persons outside the nonnal circle of a family, and that
family's closest social acquaintance, are or can be present. The
sound recording in this case is the copyrighted music broadcasted
over the radio which Anrey played through speakers loud enough
for its patrons to hear. This act of playing radio broadcasts
containing copyrighted rriusic through the use of loudspeakers is
in itself, a public perforrnance.

• There is no merit to Anrey's claim for exemption from securing

a license on the purp01ied ground that the radio station which
broadcasted the copyrighted music had already secured one from
FILSCAP. A radio reception and playing of such reception to the
public creates a performance separate from the broadcast - the
doctrine of "multiple performances."

• This doctrine provides that a radio ( or television) transmission or

broadcast can create multiple performances at once. The doctrine
was first determined in Buck v. Jewell-LaSalle Realty Co.
Dissent 4 G.R. No. 233918

(Jewell) wherein the U.S. Supreme Court 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." Ultimately, the U.S. Supreme
Court in Jewell concluded that the radio station. owner and the
hotel operator simultaneously performed the works in question.
It cited that it is "the duty of the. courts to give full protection to
the monopoly of public performance for profit which Congress
has secured to the composer."

• 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. This
falls within the definition of Section 171.3 of RA 8293 1 and in
relation to performances and sound recordings, Section 202.9 of
the same law defines "communication to the public." 2

• Applying the definitions, the reception of a radio broadcast of

sound recordings within the hearing of Anrey's public through
the use of speakers is both a public performance and a
communication to the public.

• This ruling is supported by the guidance released by the World

Intellectual Property Organization (WIPO) to the Berne
Convention to which the Philippines is a signatory since 1951.
The WIPO introduced the concept of a "new public." Typically,
radio stations already secured from the copyright owner (or the
latter's assignee) the license to broadcast the sound recording. By
the nature of broadcasting, it is necessarily implied that its
reception by the public has been consented to by the copyright
owners. But the author ordinarily thinks of the license to
broadcast as to "cover only the direct audience receiving the
signal within the family circle." Any further communication of
the reception creates, by legal fiction, a "new public" which the
author never contemplated when he or she authorized its use in
the initial communication to the public.

4
171.3. "Communication to the public" or 'cornmunicate to the public" means any communication to the
public, including broadcasting, rebroadcasting, retransmitting by cable, broadcasting and retransmitting
by satellite, and includes the making of a work available to the public by wire or wireless means in such
a way that members of the public may access these works from a place and time individually chosen by
them.
2
202.9. "Communication to the public ofa performance or a sound recording" means the transmission to
the public, by any medium, otherwise than by broadcasting, of sounds of a perfonnance or the
representations of sounds fixed in a sound recording. For purposes of Section 209, "communication to
the public" includes making the sounds or representations of sounds fixed in a sound recording audible
to the public.
 Dissent 5 G.R. No. 233918

• It is not true that the radio reception of the broadcasted sound

recordings was intended to be within the hearing and enjoyment
of its staff. It is a fact that.the reception was made within auditory
range by two (2) loudspeakers located at the ceiling above the
dining areas of its restaurants. This proves that the intended
audience of the reception was its dining clientele.

• None of the limitations applies to the present case. Section 184

(i) of RA 8293 3 applies only to institutions for charitable and
educational purposes. The homestyle exemption pursuant to U.S .
legislation cannot be applied here since there is no counterpart
provision thereof in the Philippines. Anrey's reception of sound
recordings from radio broadcast is not fair use. The purpose of
the use was to enhance the ambience of Anrey' s restaurant, the
sound recordings are cre'ative pieces and not factual reportage,
the sound recordings are played in full, and this practice could
result in a substantial adverse impact on the potential market of
these sound recordings.

The Majority holds that Anrey is liable to FILSCAP for damages.

Text of the Relevant Provisions in RA 8293

FILSCAP's cause of action is viable only if it has rights that have been
violated by Anrey's act of making the reception of the radio station's
broadcast of sound recordings audible to its restaurant's clientele. The
ponencia identifies the economic rights of public pe,formance of the work
(Section 177.6 of RA 8293), i.e., referring to the sound recordings broadcasted
by the radio station, and of communication to the public of the work (Section
177.7 of RA 8293).

But these economic rights, as defined by RA 8293 , are not adversely

impacted by the alleged infringing act. The right of public performance ofthe
work has been defined in Sectio.n 171.6, viz.:

171 .6. "Public performance," in the case of a work other than an

audiovisual work, is the recitation, playing, dancing, acting or otherwise
performing the work, either directly or by means of any device or process;
in the case of an audiovisual work, the showing of its images in sequence
and the making of the sounds accompanying it audible ; and, 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

' J
184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement
of copyright: (i) The public performance or the communication to the public of a work, in a place where
no admission fee is charged in respect. of such public performance or communication, by a club or
institution for charitable or educational purpose only, whose aim is not profit making, subject to such
other limitations as may be provided in the Regulations; (n)
Dissent 6 G.R. No. 233918

family's closest social acquaintances are or can be present, irrespective

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.

On the other hand, communication to the public of the work is spelled

out in Section 171.3 thus -

171.3. "Communication to the public" or "communicate to the

public" means any communication to the public, including broadcasting,
rebroadcasting, retransmitting by cable, broadcasting and retransmitting by
satellite, and includes the making of a work available to the public by
wire or wireless means in such a way that members of the public may
access these works from a place and time individually chosen by them;

xxxx

202.9. "Communication to the public of a performance or a

sound recording" means the transmission to the public, by any medium,
otherwise than by broadcasting, of sounds of a performance or the
representations of sounds fixed in a sound recording. For purposes of
Section 209, "communication to the public" includes making the sounds
or representations of sounds fixed in a sound recording audible to the
public.

SECTION 209. Communica"tion to the Public. - If a sound

recording published for commercial purposes, or a reproduction of such
sound recording, is used directly for broadcasting or for other
communication to the public, or is publicly performed with the
intention of making and enhancing profit, a single equitable
remuneration for the performer or performers, and the producer of the sound
recording shall be paid by the user to both the performers and the producer,
who, in the absence of any agreement shall share equally.

For purposes of the present case, critical to these economic rights is

sound recording, which has been defined as -

202.2. . .. the fixation of the 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;

Meanwhile, fixation is understood under Section 202.4 to be "the

embodiment of sounds, or of the representations thereof, from which they
can be perceived, reproduced or con:imunicated through a device .... "

Here, the patrons of Anrey's restaurant were able to listen to and

perhaps enjoy the radio broadcast of sound recordings, What Anrey did was
to make the radio broadcast of the sound recordings audible to its
Dissent 7 G.R. No. 2339 18

restaurant's clientele, but not the sound recordings themselves. To repeat,

Anrey did not render the sound recordings themselves within the hearing
of the restaurant patrons. Anrey did not have possession, much less, control
of the sound recordings. What it did was merely to turn on the radio and
allow the broadcast to be heard within the premises of its restaurant.

On the other hand, as defined, the public performance of the work

pertains to sound recordings, those objects in which sounds were fixed or
recorded. Who made the sound recordings audible to the restaurant's patrons
was the radio station. It was the radio station that made possible the sound
recordings to be within the hearing of the patrons. The radio station was the
entity which exercised the public performance of the work and the sound
recordings; not Anrey.

Too, Anrey did not exercise the right to communicate the work or the
sound recordings to the public. It was not the one that transmitted to the
public, by any medium, the . representations of sounds fixed in sound
recordings. The radio station was the entity possessing or controlling the
sound recordings and the one which transmitted them to the public. Anrey
was also not responsible for making the sound recordings available to the
public in such a way by which members of the public may access these
works from a place and time individually chosen by them. The patrons of
Anrey's restaurant could not have accessed the sound recordings when it
turned on the radio and left it switched on for their listening pleasure. Hence,
Anrey could not have communicated the sound recordings to the public.

Because there was no public perfonnance or communication to the

public of the sound recordings which Anrey's restaurant patrons heard, we
cannot conclude that there was infringement of the rights assigned to
FILSCAP or that the latter is entitled to damages. As very well explained in
Twentieth Century Music Corp.· v. Aiken:4

If, by analogy to a live performance in a concert hall or cabaret, a

radio station "performs" a musical composition when it broadcasts it, the
same analogy would seem to require the conclusion that those who
listen to the broadcast through the use of radio receivers do not
perform the composition . And that is exactly what the early federal cases
held. "Certainly those who listen do not perform, and therefore do not
infringe." Jerome H. Remick & Co. v. General Electric Co., supra, at 829.
"One who manually or by human agency merely actuates electrical
instrumentalities, whereby inaudible elements that are omnipresent in
the air are made audible to persons who are within hearing, does not
"perform" within the meaning of the Copyright Law." Buck v. Debaurn,
40 F. 2d 734, 735 (SD Cal. 1929).

4
422 US 15 1, 95 S Ct 2040, 1975 US LEXIS 156.
Dissent 8 G.R. No. 233918

Good Reason for Adopting a Contrary Rule

Assuming I was wrong in my understanding of the economic rights of

public performance ofthe work and communication ofthe work to the public,
I respectfully submit that Anrey's act of tuning into the radio and allowing its
sound recordings to be heard and enjoyed by its restaurant patrons falls within
the limitation to copyright recognized by Section 184(l)(a) of RA 8293 -

(a) The recitation or performance of a work, once it has been

lawfully made accessible to the public, if done privately and free of
charge or if made strictly for a charitable or religious institution or society;

There is no question that Anrey' did not charge its restaurant's patrons
for the music that they heard coming from the radio station it tuned in. The
issue is whether it was done privately. I submit it was.

Privately should be interpreted beyond how the right of public

performance of the work pursuant to Section 171.6 of RA 8293 says of what
public is - persons outside the normal circle of a family and that family's
closest social acquaintances. Private does not refer to just being within the
normal circle of family and its closest social acquaintances.

In Twentieth Century Music Corp. v. Aiken,5 the United States Supreme

Court explained the prudential reasons for rejecting as public performance the
radio broadcast of sound recordings for the listening pleasure of patrons of a
small restaurant -

But such a holding would more than offend the principles of stare
decisis; it would result in a regime of copyright law that would be both
wholly unenforceable and highly inequitable.

The practical unenforceability of a ruling that all of those in

Aiken's position are copyright infringers is self-evident. One has only to
consider the countless business establishments in this country with radio
or television sets on their premises -- bars, beauty shops, cafeterias, car
washes, dentists' offices, and drive-ins -- to realize the total futility of any
evenhanded effort on the part of copyright holders to license even a
substantial percentage of them.

And a ruling that. a radio lis.tener "performs" every broadcast

that he receives would be highly inequitable for two distinct reasons.
First, a person in Aiken's position would have no sure way of protecting
himself from liability for copyright infringement except by keeping his
radio set turned off. For even if he secured a license from ASCAP, he
would have no way of either foreseeing or controlling the broadcast of
compositions whose copyright was held by someone else. Secondly, to
hold that all in Aiken's position "performed" these musical compositions

422 US 151, 95 S Ct 2040, 1975 US LEXIS 156.

Dissent 9 G.R. No. 233918

would be to authorize the sale of an untold number of licenses for what

is basically a single public rendition of a copyrighted work. The exaction
of such multiple tribute would go far beyond what is required for the
economic protection of copyright owners, and would be wholly at odds
with the balanced congressional purpose behind 17 U.S .C. § 1 (e): S

"The main object to be desired in expanding copyright protection

accorded to music has been to give to the composer an adequate return
for the value of his composition, and it has been a serious and a difficult
task to combine the protection of the composer with the protection of
the public, and to so frame an act that it would accomplish the double
purpose of securing to the composer an adequate return for all use
made of his composition and at the same time prevent the formation of
oppressive monopolies, which might be founded upon the very rights
granted to the composer for the purpose of protecting his interests." H.R.
Rep . No. 2222, 60th Cong., 2d Sess., 7 (1909).

This is truer in this country than in the United States. Radio is still the
most accessible means of ent~rtainment and information for most of our
people. Internet may now be ubiquitous for those who have resources to spare
but not to the many who have to live by the day. They are the ones who have
small businesses to tender, with the radio as their only companion as source
of entertainment and information. The ruling that the Majority forges will
deny these penurious businesses the radio as their mode for connecting to the
rest of the country and a means for relieving them of stress.

It is not uncommon for this Court to adopt from foreign jurisdictions

concepts and doctrines that allowed a judge or court not to decline to render
j udgment by reason of the silence, obscurity, or insufficiency of the laws. We
have often supplemented ambiguous terms in our statutes with thinking from
elsewhere where it makes sense to do so.

Here, copyright should be limited where to do otherwise would be

oppressive to the marginalized and underrepresented, those who cannot afford
beyond what the ubiquitous radio could afford. The homestyle exemption in
the United States could be adapted to help us define what private means in
Section 184(l)(a) of RA 8293 .

This exemption has been explained thus:

The elements of Section 110(5) that Edison must satisfy are (1) that
it uses a single receiving apparatus in its stores; (2) that the receiving
apparatus is of a kind commonly used in private homes; and (3) that
Edison does not further transmit or broadcast to the public the
transmission it receives (the "second transmission" restriction). The Court
finds that Edison has satisfied each of these elements through its Radio
Policy.
Dissent 10 G.R. No. 233918

The first element is satisfied ih that each store that Edison owns and
operates only uses one radio receiver at a time. The Court finds no merit
in BMI's argument that the Court should focus on the number of stores, and
thereby the total number of radios that Edison operates nationwide, rather
than on the number of radios per store. The homestyle exception makes no
sense unless it is applied on a store-by-store basis, to see whether each
store is operating one set of simple radio equipment without extensive
augmentation. It does not matter whether the owner repeats this
compliance process for two or more stores.

BMI's argument would mean that any chain of two or more stores
owned and operated by the same person would be disqualified from the
Section I 10(5) exception. The Aiken case, which carved out this homestyle
exception, involved a defendant, Mr. Aiken, who owned and operated more
than one place of business, see Twentieth Century Music Corp. v. Aiken,
356 F. Supp. 271, 272 (W.D. Pa. 1973), and no court interpreting Section
110(5) has ever taken the position that operating two or more stores
disqualifies a person from the exception. The Court finds that it is not
appropriate to focus on the number of stores involved, but rather on whether
each store duplicates the requirements of the homestyle exception. Accord,
Broadcast Music, Inc. v. Claire's Boutiques, Inc., 754 F. Supp. 1324 (N.D.
Ill.1990).

Edison also satisfies the second factor, in that its Radio Policy
requires the use of simple, low grade radio-only receivers, only two
speakers may be attached to a radio receiver, and only portable box
speakers are allowed. Edison's strict enforcement of its Radio Policy
ensures that the abuses reported in other cases do not occur in its stores;
abuses such as where high powered equipment, or equipment attached
to large numbers of speakers, or equipment augmented by voice-over
intercom systems and the like were passed off as "homestyle" radio
systems. See, e.g., Plaintiffs Reply and Opposition Memorandum,
Appendix A; National Football League, supra, 792 F.2d at 731 (citing
cases).

The equipment Edison employs is of a type generally sold for

private consumer use, and the equipment is placed or installed in the
stores in a manner duplicating its placement in a common household;
i.e. the radio-only receiver unit is placed on or underneath a shelf, two
normal box speakers are attached with ordinary speaker wire, and the wire
is generally exposed to view, the speakers are placed on a shelf or hung
on a wall near to the receiver, and speakers that are built into the walls or
ceilings may not be used. In this day of digital-audio-computerized-noise
reduced technology, most modern stereo buffs would no doubt be aghast at
the low-tech, low-performance and low cost of Edison's store equipment,
but it appears that Edison is attempting to focus on simplicity, and the spirit
of the exception when it was first promulgated in 1976.

Lastly, the Court finds that Edison has complied with the "second
transmission" restriction of the homestyle exception. What this
restriction means is that the homestyle operator may not rebroadcast or
secondarily broadcast a radio transmission to the public without
liability. A simple example of conduct that would violate this restriction is
where the operator tapes a radio broadcast in order to play it later, with
or without editing or augmentation. Certain comis have declared that other,
Dissent 11 G.R. No. 233918

less well defined conduct violates the restriction, such as where the
speakers are so far from the receiver, or are remotely placed in a room
different from the receiver, that the playing of the broadcast through
the remote speakers constitutes a second transmission to the public. See
Claire's Boutiques, supra, 754 F. Supp 1332, fn. 17 (citing cases). The
Court doubts the validity of an analysis of the distancing of the speakers
in various stores, but in any case finds that Edison's policy to place the two
speakers no more than fifteen feet from the receiver is well within the range
of any modest homestyle setup, and does not violate the second
transmission restriction. 6

In the context of this case, the above elements should define what the
word private means in Section 184(l)(a) of RA 8293. The definition hews
closely to how public is described in Section 171.6 of RA 8293 says of what
public is - persons outside the normal circle of a family and the family's
closest social acquaintances. There is a close analogy between the family
setting and the homestyle characterization as a copyright limitation. This
familiarity between the concepts should not get lost.

ACCORDINGLY, I vote to dismiss the petition and affirm the

respective Decisions of the trial court and the Court of Appeals.

CERTiFIED TRUE COPY

MARIA lITSA M. S.ANTILLA

D", ;ry Cerk of Comt and
. . · - .,,, 1fr~c Officer
( r,,_ , . ' ;m:. -re Court

Edison Bros. Stores v. Broad. Music, Inc., 760 F. Supp. 767, 1991 U.S. D is t. LEXIS 4357, *7- 11.