“In this age where the unauthorized utilization and exploitation of literary and artistic works can be done in a matter of seconds.” — Justice Lopez (FILSCAP v. Wolfpac Communications, Inc., 2025)
In the wake of two landmark Supreme Court decisions in recent years involving copyright protection, namely FILSCAP v. Anrey, Inc. (2022) and COSAC v. FILSCAP (2023), the Supreme Court further developed this body of jurisprudence in 2025 with the case of FILSCAP v. Wolfpac Communications, Inc. In this case, the Court finally delineated the distinction between the economic rights of public performance and communication to the public, particularly with respect to sound recordings.
Under Section 171.6 of Republic Act No. 8293 or the Intellectual Property Code of the Philippines (IP Code), public performance with respect to sound recordings is defined as the “making the recorded sounds audible at a place or at places where persons outside the normal circle of a family and that family’s closest social acquaintances are or can be present, irrespective of whether they are or can be present at the same place and at the same time, or at different places and/or at different times, and where the performance can be perceived without the need for communication within the meaning of Subsection 171.3.”
Conversely, Section 171.3 defines communication to the public as “any communication to the public, including broadcasting, rebroadcasting, retransmitting by cable, broadcasting and retransmitting by satellite, and includes the making of a work available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them.”
In FILSCAP v. Wolfpac, the controversy arose when the Filipino Society of Composers, Authors and Publishers, Inc. or FILSCAP, a collective management organization representing music creators and copyright owners, discovered an advertisement in the Philippine Daily Inquirer indicating that Wolfpac was offering mobile phone ringtones and ringback tones for purchase and download through online platforms. Of particular contention was the pre-listening feature on Wolfpac’s website which allowed potential purchasers to play a 20-second preview of the ringback tone or song before downloading it.
FILSCAP thus filed a complaint for copyright infringement, seeking payment of outstanding royalties and Wolfpac’s procurement of appropriate licenses, particularly that of public performance. Wolfpac countered that such pre-listening feature is part of their right under contract with individual composers and publishers and, more importantly, there was no public performance as this feature fell under the separate right of communication to the public.
In resolving the issue, the Supreme Court finally recognized the need to distinguish between those two rights, stating that: “In some jurisdictions, communication to the public is a form of public performance. But since the [IP] Code provides a dichotomy between public performance and communication to the public, the Court is duty bound to differentiate these two rights.”
The Court laid down the key differences as follows:
As to the act complained of, communication to the public is done by making the works available to the public by wire or wireless means, including broadcasting, rebroadcasting, retransmitting by cable, broadcasting and retransmitting by satellite. On the other hand, public performance can be done in three ways depending on the kind of work involved: (1) for works other than audiovisual work: recitation, playing, dancing, acting or otherwise performing the work; (2) for audiovisual work: showing the images in sequence and making the accompanying sounds audible; and, (3) for performance of sound recordings: making the recorded sound audible.
As to the role of the infringer, in communication to the public, the accused is the one responsible for making the works available to the public. Whereas, in public performance, the accused is the one who performs, shows, or makes the work audible.
As to the role of the public, in communication to the public, the members of the public, by wire or wireless means, can access the work at a time and place of their choosing, regardless of whether they actually accessed or received the works. In contrast, in public performance, the members of the public should actually or could potentially perceive the performance of the work without the need for communication to the public.
Applying these distinctions, the Court held that Wolfpac’s 20-second pre-listening functions constitute communication to the public and not public performance. Ultimately, however, the Court found that Wolfpac did not commit copyright infringement after applying the factors of fair-use, and finding that the pre-listening function qualified as fair use since the act of making the song public was for the “purposes of allowing potential customers to make an informed decision before downloading the songs.”
As the Court itself has recognized: “the advent of digital technology paved the way for the development of copyrights.” This decision has shined a light on a confusing part of the IP Code, and clarified the scope of two economic rights which may otherwise be easily conflated, particularly in the context of fast emerging digital platforms.
(This article is only for general informational and educational purposes and is not offered as and does not constitute legal advice or opinion.)
Micah Cheyenne M. Ecarma-Vargas is an associate of the Intellectual Property department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
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