FILIPINO SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, INC., PLAINTIFF-APPELLANT, VS. BENJAMIN TAN, DEFENDANT-APPELLEE.

An appeal was made to the Court of
Appeals docketed as CA-GR 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
Fountain 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:

I

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 singing 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:

x x x

x x x

x x x

(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;

x x x

x x x

x x x”

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 x x x 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 v. 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 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 as 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 things that an intellectual creation should be copyrighted thirty
(30) days after its publication, if made in Manila, or within sixty (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., no part.
On leave at time of
deliberation.

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^[*] Penned by Justice Ruperto G. Martin concurred in by Justices Andres Reyes and
Mateo Canonoy.

^[**] Penned by Judge Gregorio T. Lantin.