Dear PAO,

I have this neighborhood eatery (carinderia) and happen to put on my favorite radio on blast at night for my diners’ enjoyment. I feel that music over the radio helps with my sales, but my neighbor, Karen, wants me to stop. Yesterday, Karen told me that she would report me to several music companies for copyright infringement because of my radio music. I told her that she was being foolish since playing music over the radio is normal and legal. Please tell me that Karen is wrong about all this.

-Xharon

Dear Xharon,

Unfortunately, your neighbor, Karen, is actually correct. Playing music from your radio for your eatery is actually a form of copyright infringement.

Indeed, the Supreme Court, speaking through Associate Justice Rodil Vaquilar Zalameda, in the case of Filipino Society of Composers, et al. vs. Anrey Inc. (GR 233918, Aug. 09, 2022), stated that playing copyrighted music without permission from its owner constitutes copyright infringement, in the following:

“The very core of the controversy is whether radio reception or by simply tuning in on the radio as background music in the restaurants owned by Anrey amounts to a violation of Section 177.6 of the [Intellectual Property Code], or the right to public performance by FILSCAP. Anrey believes that radio reception cannot be categorized a public performance while FILSCAP insists the contrary claiming that the provision of the law defining public performance is broad enough to cover this kind of situation.

“A ‘public performance’ means:

“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 family’s closest social acquaintance 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.

“A ‘sound recording’ means the fixation of 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; while a ‘fixation’ is defined as the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device.

“Following a run-down of the above definitions, a sound recording is publicly performed if it is made audible enough at a place or at places where persons outside the normal 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 most of its patrons to hear. But the big question is whether radio reception is, to begin with, a performance.

“We believe that the act of playing radio broadcasts containing copyrighted music through the use of loudspeakers (radio-over-loudspeakers) is in itself, a performance.”

Thus, considering that playing the music on the radio in your eatery is considered as performance, a license from the music’s owners must first be secured. Without their permission, playing such music on a volume reaching far beyond the space for closest social acquaintances constitutes copyright infringement, which is illegal. Your neighbor, Karen, is correct in telling you this, so it would be prudent of you to refrain from playing your radio at your eatery.

Please note that this piece of advice was based only on the facts you have given and our appreciation of the same. Our opinion may change given more details.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].