G.R. No. L-36402 March 16, 1987 FILIPINO SOCIET OF COMPOSERS, !"T#ORS !N$ P"%LIS#ERS, INC., plaintiff-appellant, vs.%EN&!

MIN T!N, defendant-appellee. Lichauco, Picazo & Agcaoili Law Office for plaintiff-appellant. Ramon A. Nieves for defendant-appellee.

P!R!S, J.: An appeal was made to the Court of Appeals docketed as CA-G.R. No. 463 3-R ' entitled ilipino !ociet" of #omposers, Authors, Pu$lishers, %nc., Plaintiff-Appellant v. &en'amin (an, )efendant-Appellee, from the decision of the Court of !irst "nstance of #anila, $ranch %"" in Civil Case No. &''' '' * ilipino !ociet" of #omposers, Authors and Pu$lishers, %nc., Plaintiff v. &en'amin (an, )efendant,* which had dismissed plaintiffs( complaint without special pronouncement as to costs. )he Court of Appeals, findin* that the case involves pure +uestions of law, certified the same to the ,upreme Court for final determination -Resolution, CA-G.R. No. 463 3-R, Rollo, p. 36. Resolution of the ,upreme Court of !e/ruar0 &6, &1 3 in 2-3643', Rollo, p. 345. )he undisputed facts of this case are as follows6 7laintiff-appellant is a non-profit association of authors, composers and pu/lishers dul0 or*ani8ed under the Corporation 2aw of the 7hilippines and re*istered with the ,ecurities and 9:chan*e Commission. ,aid association is the owner of certain musical compositions amon* which are the son*s entitled6 ;<ahil ,a "0o;, ;,apa*kat "kaw A0 Akin,; ;,apa*kat =ami A0 )ao 2aman*; and ;)he Nearness >f ?ou.; >n the other hand, defendant-appellee is the operator of a restaurant known as ;Ale: ,oda !oundation and Restaurant; where a com/o with professional sin*ers, hired to pla0 and sin* musical compositions to entertain and amuse customers therein, were pla0in* and sin*in* the a/ove-mentioned compositions without an0 license or permission from the appellant to pla0 or sin* the same. Accordin*l0, appellant demanded from the appellee pa0ment of the necessar0 license fee for the pla0in* and sin*in* of aforesaid compositions /ut the demand was i*nored. @ence, on Novem/er , &16 , appellant filed a complaint with the lower court for infrin*ement of cop0ri*ht a*ainst defendant-appellee for allowin* the pla0in* in defendant-appellee(s restaurant of said son*s cop0ri*hted in the name of the former. <efendant-appellee, in his answer, countered that the complaint states no cause of action. Ahile not den0in* the pla0in* of said cop0ri*hted compositions in his esta/lishment, appellee maintains that the mere sin*in* and pla0in* of son*s and popular tunes even if the0 are cop0ri*hted do not constitute an infrin*ement -Record on Appeal, p. &&. Resolution, CAG.R. N>. 463 3-R, Rollo, pp. 3'-365 under the provisions of ,ection 3 of the Cop0ri*ht 2aw -Act 3&34 of the 7hilippine 2e*islature5. )he lower court, findin* for the defendant, dismissed the complaint -Record on Appeal, p. 'B5. 7laintiff appealed to the Court of Appeals which as alread0 stated certified the case to the ,upreme Court for adCudication on the le*al +uestion involved. -Resolution, Court of Appeals, Rollo, p. 36. Resolution of the ,upreme Court of !e/ruar0 &4, &1 3, Rollo, p. 345. "n its /rief in the Court of Appeals, appellant raised the followin* Assi*nment of 9rrors6 "

)@9 2>A9R C>DR) 9RR9< "N @>2<"NG )@A) )@9 #D,"CA2 C>#7>,")">N, >! )@9 A77922AN) A9R9 "N )@9 NA)DR9 >! 7D$2"C 7R>79R)? A@9N )@9? A9R9 C>7?R"G@)9< >R R9G",)9R9<. "" )@9 2>A9R C>DR) 9RR9< "N @>2<"NG )@A) )@9 #D,"CA2 C>#7>,")">N, >! )@9 A77922AN) A9R9 72A?9< AN< ,DNG "N )@9 ,><A !>DN)A"N AN< R9,)ADRAN) >! )@9 A7792299 $? "N<979N<9N) C>N)RAC)>R, AN< >N2? D7>N )@9 R9ED9,) >! CD,)>#9R,. """ )@9 2>A9R C>DR) 9RR9< "N @>2<"NG )@A) )@9 72A?"NG AN< ,"NG"NG >! C>7?R"G@)9< #D,"CA2 C>#7>,")">N, "N )@9 ,><A !>DN)A"N AN< R9,)ADRAN) >! )@9 A7792299 AR9 N>) 7D$2"C 79R!>R#ANC9, !>R 7R>!") >! )@9 ,A"< C>#7>,")">N, A")@"N )@9 #9AN"NG AN< C>N)9#72A)">N >! )@9 C>7?R"G@) 2AA. "% )@9 2>A9R C>DR) 9RR9< "N N>) @>2<"NG )@A) )@9 A7792299 ", 2"A$29 )> )@9 A77922AN) !>R !>DR -45 ,97ARA)9 "N!R"NG9#9N),. -$rief for Appellant, pp. A and $5. )he petition is devoid of merit. )he principal issues in this case are whether or not the pla0in* and si*nin* of musical compositions which have /een cop0ri*hted under the provisions of the Cop0ri*ht 2aw -Act 3&345 inside the esta/lishment of the defendant-appellee constitute a pu/lic performance for profit within the meanin* and contemplation of the Cop0ri*ht 2aw of the 7hilippines. and assumin* that there were indeed pu/lic performances for profit, whether or not appellee can /e held lia/le therefor. Appellant anchors its claim on ,ection 3-c5 of the Cop0ri*ht 2aw which provides6 ,9C. 3. )he proprietor of a cop0ri*ht or his heirs or assi*ns shall have the e:clusive ri*ht6 ::: ::: ::: -c5 )o e:hi/it, perform, represent, produce, or reproduce the cop0ri*hted work in an0 manner or /0 an0 method whatever for profit or otherwise. if not reproduced in copies for sale, to sell an0 manuscripts or an0 record whatsoever thereof. ::: ::: ::: "t maintains that pla0in* or sin*in* a musical composition is universall0 accepted as performin* the musical composition and that pla0in* and sin*in* of cop0ri*hted music in the soda fountain and restaurant of the appellee for the entertainment of the customers althou*h the latter do not pa0 for the music /ut onl0 for the food and drink constitute performance for profit under the Cop0ri*ht 2aw -$rief for the Appellant, pp. &1-'B5. Ae concede that indeed there were ;pu/lic performances for profit. ; )he word ;perform; as used in the Act has /een applied to ;>ne who pla0s a musical composition on a piano, there/0 producin* in the air sound waves which are heard as music ... and if the instrument he pla0s on is a piano plus a /roadcastin* apparatus, so that waves are thrown out, not onl0 upon the air, /ut upon the other, then also he is performin* the musical composition.; -$uck, et al. v. <uncan, et al.. ,ame Fewell 2a ,alle Realt0 Co., 3'!. 'd. ,eries 36 5. "n relation thereto, it has /een held that ;)he pla0in* of music in dine and dance esta/lishment which was paid for /0 the pu/lic in purchases of food and drink constituted ;performance for profit; within a Cop0ri*ht 2aw.; -$uck, et al. v. Russon No. 4441 'B !. ,upp. 3& 5. )hus, it has /een e:plained that while it is possi/le in such esta/lishments 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 /0 the orchestra for the purpose of inducin* the pu/lic to patroni8e the esta/lishment and pa0 for the entertainment in the

purchase of food and drinks. )he defendant conducts his place of /usiness for profit, and it is pu/lic. and the music is performed for profit -%$id, p. 3&15. "n a similar case, the Court ruled that ;)he 7erformance in a restaurant or hotel dinin* room, /0 persons emplo0ed /0 the proprietor, of a cop0ri*hted musical composition, for the entertainment of patrons, without char*e for admission to hear it, infrin*es the e:clusive ri*ht of the owner of the cop0ri*ht.; -@er/ert v. ,hanle0 Co.. Fohn Church Co. v. @illard @otel Co., et al., '4' D.,. B13-B1&5. "n deliverin* the opinion of the Court in said two cases, Fustice @olmes ela/orated thus6 "f the ri*hts under the cop0ri*ht are infrin*ed onl0 /0 a performance where mone0 is taken at the door, the0 are ver0 imperfectl0 protected. 7erformances not different in kind from those of the defendants could /e *iven that mi*ht compete with and even destro0 the success of the monopol0 that the law intends the plaintiffs to have. "t is enou*h to sa0 that there is no need to construe the statute so narrowl0. )he defendants( performances are not eleemos0nar0. )he0 are part of a total for which the pu/lic pa0s, and the fact that the price of the whole is attri/uted to a particular item which those present are e:pected to order is not important. "t is true that the music is not the sole o/Cect, /ut neither is the food, which pro/a/l0 could /e *ot cheaper elsewhere. )he o/Cect is a repast in surroundin*s that to people havin* limited power of conversation or dislikin* the rival noise, *ive a lu:urious pleasure not to /e had from eatin* a silent meal. "f music did not pa0, it would /e *iven up. "f it pa0s, it pa0s out of the pu/lic(s pocket. Ahether it pa0s or not, the purpose of emplo0in* it is profit, and that is enou*h. -%$id., p. B145. "n the case at /ar, it is admitted that the patrons of the restaurant in +uestion pa0 onl0 for the food and drinks and apparentl0 not for listenin* to the music. As found /0 the trial court, the music provided is for the purpose of entertainin* and amusin* the customers in order to make the esta/lishment more attractive and desira/le -Record on Appeal, p. '&5. "t will /e noted that for the pla0in* and sin*in* the musical compositions involved, the com/o was paid as independent contractors /0 the appellant -Record on Appeal, p. '45. "t is therefore o/vious that the e:penses entailed there/0 are added to the overhead of the restaurant which are either eventuall0 char*ed in the price of the food and drinks or to the overall total of additional income produced /0 the /i**er volume of /usiness which the entertainment was pro*rammed to attract. Conse+uentl0, it is /e0ond +uestion that the pla0in* and sin*in* of the com/o in defendant-appellee(s restaurant constituted performance for profit contemplated /0 the Cop0ri*ht 2aw. -Act 3&34 amended /0 7.<. No. 41, as amended5. Nevertheless, appellee cannot /e said to have infrin*ed upon the Cop0ri*ht 2aw. Appellee(s alle*ation that the composers of the contested musical compositions waived their ri*ht in favor of the *eneral pu/lic when the0 allowed their intellectual creations to /ecome propert0 of the pu/lic domain /efore appl0in* for the correspondin* cop0ri*hts for the same -$rief for <efendant-Appellee, pp. &4-&B5 is correct. )he ,upreme Court has ruled that ;7ara*raph 33 of 7atent >ffice Administrative >rder No. 3 -as amended, dated ,eptem/er &4, &14 5 entitled (Rules of 7ractice in the 7hilippines 7atent >ffice relatin* to the Re*istration of Cop0ri*ht Claims( promul*ated pursuant to Repu/lic Act &6B, provides amon* other thin*s that an intellectual creation should /e cop0ri*hted thirt0 -335 da0s after its pu/lication, if made in #anila, or within the -635 da0s if made elsewhere, failure of which renders such creation pu/lic propert0.; -,antos v. #cCullou*h 7rintin* Compan0, &' ,CRA 3'4-3'B G&164H. "ndeed, if the *eneral pu/lic has made use of the o/Cect sou*ht to /e cop0ri*hted for thirt0 -335 da0s prior to the cop0ri*ht application the law deems the o/Cect to have /een donated to the pu/lic domain and the same can no lon*er /e cop0ri*hted. A careful stud0 of the records reveals that the son* ;<ahil ,a "0o; which was re*istered on April '3, &1B6 -$rief for Appellant, p. &35 /ecame popular in radios, Cuke /o:es, etc. lon* /efore re*istration -),N, #a0 '4, &164, pp. 3-B. 'B5 while the son* ;)he Nearness >f ?ou; re*istered on Fanuar0 &4, &1BB -$rief for Appellant, p. &35 had /ecome popular twent0 five -'B5 0ears prior to &164, -the 0ear of the hearin*5 or from &143 -),N, #a0 '4, &164, p. ' 5 and the son*s ;,apa*kat "kaw A0 Akin; and ;,apa*kat =ami A0 )ao 2aman*; /oth re*istered on Ful0 &3, &166, appear to have /een known and san* /0 the witnesses as earl0 as &16B or three 0ears /efore the hearin* in &164. )he testimonies of the witnesses at the hearin* of this case on this su/Cect were unre/utted /0 the appellant. - %$id, pp. '4. '1 and 335. Dnder the circumstances, it is clear that the musical compositions in +uestion had lon* /ecome pu/lic propert0, and are therefore /e0ond the protection of the Cop0ri*ht 2aw. 7R9#",9, C>N,"<9R9<, the appealed decision of the Court of !irst "nstance of #anila in Civil Case No. &''' is here/0 A!!"R#9<. ,> >R<9R9<.