FILIPINO SOCIETY OF COMPOSERS AND PUBLISHERS, PETITIONER, VS. WOLFPAC COMMUNICATIONS, INC., RESPONDENT.
FACTS
1. Composers entered into Memoranda of Agreement (MOAs) with WOLFPAC COMMUNICATIONS, INC. (Wolfpac), authorizing Wolfpac to convert musical works into downloadable ringtones and sell them to the public via a Partner Operator.
2. The MOAs stipulated that the grant did not include any right not expressly authorized and that all other rights of the composer were reserved. Wolfpac was required to obtain any other necessary licenses and consents for uses not granted under the agreements.
3. Wolfpac’s service included a “Listen B4 U Download” feature, allowing potential consumers to listen to a 20-second portion of a song (a pre-listening function) before downloading.
4. The Filipino Society of Composers, Authors and Publishers, Inc. (FILSCAP) filed a complaint for copyright infringement against Wolfpac for its refusal to secure licenses from FILSCAP and pay royalties, arguing that the pre-listening function constituted a “public performance.”
5. Wolfpac argued that the pre-listening function was not a “public performance” and, even if it were, it was allowed under its MOAs with the composers.
ISSUE
1. Whether the use of sample ringtones in the pre-listening function on Wolfpac’s website constitutes public performance or communication to the public.
2. Whether Wolfpac’s use of the samples constitutes copyright infringement.
RULING
Justice Caguioa, in his Concurring Opinion, concurred with the ponencia‘s dismissal of FILSCAP’s complaint for copyright infringement. He agreed with the following holdings:
1. The pre-listening function is considered a “communication to the public” and not a “public performance.” An important distinction is that a “public performance” under the Intellectual Property Code does not include performances that require “communication” within the meaning of Section 171.3 to be perceived.
2. Wolfpac’s use of the samples in the pre-listening function does not constitute copyright infringement because it falls under the doctrine of fair use.
3. The opinion clarifies that foreign jurisprudence, particularly from the United States, should be applied with caution because U.S. copyright law subsumes “communication to the public” under the definition of “public performance,” whereas the Philippine IP Code treats them as separate and distinct rights.
4. The opinion further maintains, consistent with the Justice’s previous separate opinion in FILSCAP v. Anrey and the subsequent En Banc ruling in Philippine Home Cable Holdings, Inc. v. Filipino Society of Composers, Authors & Publishers, Inc., that the act of playing radio broadcasts via loudspeakers (radio-over-loudspeakers) constitutes “communication to the public” and should no longer be classified as a “public performance.”
5. Regarding the MOAs, the opinion states that the authorization granted to Wolfpac was limited to converting content into ringtones and offering/selling them. The grant did not expressly include the right to use 20-second samples for pre-listening. Any expansion of this authority would contravene the plain terms of the contracts and unjustly diminish the copyright owners’ rights. However, this did not lead to a finding of infringement due to the fair use doctrine.
Justice Caguioa voted to DISMISS the petition.
