JFC

FILIPINO SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, INC., plaintiff-appellant, vs. BENJAMIN
TAN, defendant-appellee.
No. L-36402. March 16,1987.| J. Paras
When does copyright vest?

DOCTRINE: The act of singing a song in a restaurant where the customers only paid for the food still constitutes public
performance for profit under the Copyright Law, because the customers actually paid for the experience of being in the
restaurant (i.e., the food AND the music). HOWEVER, if the songs were allowed by the creators to be performed in the
public before these were registered, these songs already became public property and cannot be copyrighted.

SUMMARY: The copyrighted songs of FILSCAP (an association of composers, authors, and publishers) were sung in the
restaurant of Benjamin Tan by professional singers. FILSCAP demanded payment for the license over these songs, but
Tan ignored the demand. FILSCAP sued Benjamin Tan for copyright infringement. The CFI dismissed the case, and the
SC affirmed, for reasons stated in the doctrine.

DISPOSITION: PREMISES CONSIDERED, the appealed decision of the Court of First Instance of Manila in Civil Case
No. 71222 is hereby AFFIRMED.

FACTS: The Filipino Society of Composers, Authors, and Publishers or FILSCAP was the owner of these musical compositions:
Dahil sa Iyo; Sapagkat Ikaw ay Akin; Sapagkat Kami ay Tao Lamang; and The Nearness of You.

Benjamin Tan was the operator of a restaurant, known as Alex Soda Foundation and Restaurant. In this restaurant, singers were
hired to sing the above named songs without license or permission from FILSCAP. FILSCAP demanded payment for the
necessary license, but the demand was ignored.

FILSCAP thus sued Tan before the CFI of Manila for infringement of copyright. Tan’s Answer was this: the mere singing of the
copyrighted songs did not constitute infringement under sec. 3 of the Copyright Law (Act No. 3134). CFI dismissed the case.

FILSCAP appealed before the CA, and the CA certified before the SC that the issue involved was purely a question of law.

ISSUE: Whether or not the singing of the copyrighted songs within the restaurant (upon request of customers and by
hired singers) constituted public performance for profit, covered by Sec. 3[c] of the Copyright Law—YES

Sec. 3[c] provides: “"SEC. 3. The proprietor of a copyright or his heirs or assigns shall have the exclusive right: (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.”

It has been explained by the US Supreme Court in Buck v. Russon 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

In Herbert v. Shanley and John Church v. Hillard Hotel, the US Supreme Court said: “'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."

In the two cases above, Justice Holmes said: “"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.” Justice
Holmes said that customers may not have paid solely for the music, but the same can be said for the food. “It is true that the music
is not the sole object, but neither is the food, which probably could be got cheaper elsewhere.” The customer pays for the
experience, which includes the music.

Whether or not the songs which became popular already before they were registered, were already public property—YES

The Supreme Court in Santos v. McCullough 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 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." Thus, 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.
Dahil Sa Iyo was popular in jukeboxes, radios, and other media long before it was registered in 1956. The Nearness of You was
popular in 1943, long before it was registered in 1955. The other two songs, based on the records, were already sung by the hired
singers of the restaurant before the songs were registered in 1966. 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.