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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
The General Manager of Filipino Society of Composers, Authors and Publishers (FILSCAP) said that “”If we are to be strict about it, song covers uploaded on the internet is illegal. Copyrighted music cannot be played or performed to the public without permission. They’re not supposed to, without a license”.
What is copyright?
“[A] copyright is the right to literary property as recognized and sanctioned by positive law; it is an intangible, incorporeal right granted by statute to the author or originator of certain literary or artistic productions, whereby he or she is invested, for a specific period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.” (Kensonic, Inc. v. Uni-line Multi-Resources, Inc. (Phil.), 832 Phil. 495, 505 (2018)
Literary and artistic works are protected by copyright. Derivative works are likewise protected by copyright. It is to be noted that musical works are protected by copyright from the moment of creation in accordance with Sections 172 and 178 of the Intellectual Property Code.
Is posting of cover songs online a violation of copyright laws?
The General Manager of Filipino Society of Composers, Authors and Publishers (FILSCAP) said that “”If we are to be strict about it, song covers uploaded on the internet is illegal. Copyrighted music cannot be played or performed to the public without permission. They’re not supposed to, without a license”.
Such an answer is indeed in accordance with the law itself. The act of posting cover songs online is tantamount to copyright infringement.
What is copyright infringement?
Infringement of a copyright is a trespass on a private domain owned and occupied by the owner [or assignee] of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner [or assignee] of the copyright, of anything the sole right to do which is conferred by statute on the owner [or assignee] of the copyright (Microsoft Corp. v. Manansala, 772 Phil. 14, 20-21 (2015)).
The gravamen of copyright infringement,’ according to NBI-Microsoft Corporation v. Hwang (Phil. 14, 20-21, 2015),
[I]s not merely the unauthorized ‘manufacturing’ of intellectual works but rather the unauthorized performance of any of the acts covered by Section 5. Hence, any person who performs any of the acts under Section 5 without obtaining the copyright owner’s prior consent renders himself civilly and criminally liable for copyright infringement.
To successfully claim that copyright infringement was committed, the evidence must show the “(1) ownership of a validly copyrighted material by the complainant; and (2) infringement of the copyright by the respondent.”
For the first element, as already mentioned, original and derivative works are protected by copyright from the moment of creation. The copyright owners can then enforce their rights, especially economic rights, without the need for prior reporting or recording. In the same way, the copyright owners can assign their rights to an assignee, and this assignment need not be registered for it to be valid. Thereafter, the copyright owners or their assignee can properly pursue the protection and enforcement of these rights.
The second element is comprised of two (2) components: (1) the act of infringement; and (2) the defendant or respondent who committed the act of infringement (COSAC, Inc. v. FILSCAP, G.R. No. 222537. February 28, 2023).
The infringing act, “is not merely the unauthorized ‘manufacturing’ of intellectual works but rather the unauthorized performance” of any of the acts covered by the exclusive economic rights provided under Section 177 of the IPC of the copyright owners or their assignee.
As to the case of posting cover songs online, it would constitute copyright infringement if the song covered is a copyrighted material. And it is the act of posting it for the public to see which would constitute an act of infringement.
This seems like a steep rule given that everything nowadays is posted online. Nevertheless, the law provides for Limitations on Copyright under Section 184 of the Intellectual Property Code (IPC).
One of the Limitations on Copyright provided under the law is:
(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)
This means that a public performance or communication to the public of a work would not automatically constitute as copyright infringement if the following requisites are satisfied:
(i) The place where the performance is made does not charge any admission fee in respect of such performance or communication;
(ii) The performance is made by a club or institution: (a) for charitable or educational purpose only; and (b) whose aim is not profit making; and
(iii) Such other requirements that may be prescribed under the implementing rules and regulations promulgated by the Director General of the [IPO].
Further, the law also provides for the Fair Use of a Copyrighted Work under Section 185 of the IPC.
SECTION 185. Fair Use of a Copyrighted Work. – 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:
(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work.
185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
It can thus be inferred that the copyright owners do not have the unlimited and absolute right to limit, restrict, authorize or permit the performances of their works, based on Sections 184 and 185 of the IPC.
Is intent to profit a necessary element for copyright infringement?
No. In the case of FILSCAP v. Tan (Tan), the element of profit was considered, in that ultimately, the establishment derived revenue from the playing of live band music even if the patrons primarily paid for the food and drinks. Simply put, the public performance of the musical works was made essentially for the realization of profit. It should be stressed, however, that Act No. 3134, the prevailing law when Tan was resolved, expressly mentioned “profit” in connection with “performance.” Meanwhile, Sections 171.6 and 177.6 of the IPC no longer mentioned “profit” in relation to “public performance.”As such, when considering cases which were filed after Act No. 3134 was amended, “profit” should not be the controlling factor in assessing whether one committed copyright infringement after the performance in public of the musical works, although “profit” would be relevant in evaluating if the case falls under the limitations on copyright or the fair use doctrine (COSAC, Inc. v. FILSCAP, G.R. No. 222537. February 28, 2023).
Related Article/s:
Are News Reports/Stories/Broadcasts Protected by Copyright?
How to Spot Copyright Infringement
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