May bars and restaurants play copyrighted music without permission?

By Atty. Eduardo T. Reyes III

With the lifting of covid-related restrictions, insalubrious public drinking had resumed in bars and restaurants until the wee hours of the morning. Alcohol-induced incidents had been reported and it does not help that coffee shops and restaurants at day morph into bibulous videoke bars at night. Playing of live music by bands that were unplugged during the pandemic had likewise come alive once more.

But the noise emitted by these bars and restaurants will be the subject of another article. For now, what has surfaced into relevance is the issue of whether bars and restaurants can play copyrighted music without permission from the copyright owner/s?

The loud music being played in bars and restaurants could either be through a background music, or live performance by a band.

In the recent case of Cosac, Inc. v. Filipino Society of Composers, Authors and Publishers, Inc., G.R. No. 222537, which was handed down on February 28, 2023, the Supreme Court en banc (full bench) considered as “infringing activities” the acts of: “performance by a live band and playing of sound recordings”. 

                 The case stemmed from a complaint by FILSCAP which is “a non-stock, non-profit corporation comprised of composers, authors, and music publishers. It is tasked to enforce and protect the performing rights of copyright owners of musical works” as explained in Cosac, Inc.

                Therein, “copyright” was defined as:

“[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”. Relevantly, “[ c ]opyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by the statute, and not simply a pre-existing right regulated by it. Being a statutory grant, the rights are only such as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by the persons, and on terms and conditions specified in the statute. Accordingly, it can cover only the works falling within the statutory enumeration or description”.

When the copyright is infringed, within the context of this case, who could be held liable for damages?

As extensively explained in Cosac, Inc., copyright infringement may be committed by a primary infringer, or a secondary infringer. But by applying American jurisprudence, it was underlined that all of the infringers are solidary liable because copyright infringement is a form of tort.  

Thus, when a restaurant or bar owner plays recorded songs which are copyrighted “for profit” because customers have to pay to be there, then they become a “primary infringer”. On the other hand, when the restaurant or bar owner “allows”, or worse, “instructs” a band to play a copyrighted song, then that is a case of “secondary infringement” based on the principle of “vicarious liability”. It was held in Cosac, Inc.:

“To be more precise, COSAC is a primary infringer, and also a secondary infringer under the concept of vicarious infringement. This is because as owner of Off the Grill, it allowed the commission of infringing acts when it permitted musical artists or bands to perform copyrighted music (secondary infringer), and played sound recordings as background music (primary infringer) without first procuring a license from the copyright owners ( or assignees) of the songs and paying the fee”.

Especially in the Philippines, one of the most under-appreciated talents or skills of a person is “intellectual creation”.  Yet, under Article 712 of the New Civil Code, “intellectual creation” is one of the surest modes of acquiring ownership.

The Cosac Inc. case could put some awareness on business establishments that are mindless of the value of what composers and singers have created from sheer imagination. The case should also encourage the intellectually creative to allow their minds to wander and churn out some music, note for note, chord by chord, until the rhythm and harmony blends with nature.

            (The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor, MCLE lecturer, bar reviewer and a book author. His website is etriiilaw.com).