33 FILSCAP v.

Tan

FACTS
FILSCAP is a non-profit association of authors, composers, and publishers and owned musical
compositions like Dahil Sa Iyo, Sapagkat Ikaw Ay Akin, etc.
Tan is a the operator of Alex Soda Fountain and Restaurant where musical combo sings to guests
(including the songs aforementioned).
o FILSCAP demanded payment of license fees but was ignored.
FILSCAP then filed a complaint for infringement of copyright.
o Tans counter: no cause of action; mere singing and playing of compositions is no infringement
Lower court: dismissed
CA: no factual issue, only legal -> certify to SC with the following errors:
1. Musical compositions are not public property when copyrighted/registered
2. Compositions in issue were only played and sun by independent contracts + upon request
3. Performing such in restos are not public performances for profit pursuant to the Copyright
Law
4. Tan is liable for 4 counts of infringement

ISSUE + RULING
Is the singing and playing of copyrighted musical compositions inside the establishment of Tan a public
performance for profit? No.
3, Copyright Law
"SEC. 3. The proprietor of a copyright or his heirs or assigns shall have the exclusive right:
xxxxxxxxx
(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."
FILSCAP: such performance, although guests do not pay for music but only for food and drink =
performance
SC: while there are public performances for profit, this case is not one of those
o Buck v. Duncan: Perform: One who plays a musical composition
o Buck v. Russon: playing music in dine and dance establishments = performance for profit
because the music and performances is used to entice customers in a public setting; the music
is part of the total that patrons pay (food is more expensive as cost is added thereto)
HOWEVER, there is no infringement in this case because the composers waived their right n favor of
the general public when they allowed the songs to become part of the public domain before
copyrighting it.
Par 33, Rules of Patent and Copyright:
x x x x x among other 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."
o Santos v. McCullough Printing Company: If the general public has made use of the object
sought to be copyrighted for 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.x x x x
o Songs were found to have become popular from 3-25 years before they were copyrighted.