How to Perform and Play Songs in Public the Legal Way

IPOPHL, FILSCAP Answer at Philippines First Music Conference x Festival

Published on October 10, 2019

Most of you have probably celebrated birthdays in restaurants where waiters gather round your table to sing you a "Happy Birthday," accompanied by some dancing. And because it's your special day, they'd often serenade you with a few more songs at your request. 

This may sound harmless especially if no damage was done to anyone's eardrums, which can be the case when waiters aren't really professional singers but are simply performing on their boss's orders. But if you think about rights, and most of the time, we hardly ever do, such seemingly harmless situation of singing waiters may actually equate to an act of infringement that is punishable by law if no prior permission from the copyright owner of the songs have been obtained. 

Literary and artistic works are copyright protected from the moment of creation. So when you compose an original poem even while in the confines of your bedroom, it is already protected. The Copyright Law (Part IV of the Intellectual Property Code) grants you, the author of the work, a bundle of exclusive rights that you can exercise to protect your work and maximize the gains—both moral and financial gains—that accrues from its creation.  

As the rightful author of the work, you are free to set any conditions, including the imposition of fees (“royalties”) for the use (such as reproduction and distribution) of your work.

The performing or playing of copyrighted works in public without a license from the copyright holder is an issue many do not know is an issue.

Another seemingly harmless everyday activity is covering a song and uploading it on YouTube. This is the specific real-life situatiin which the Intellectual Property Office of the Philippines (IPOPHL) and the Filipino Society of Composers, Authors and Publishers (FILSCAP) shed light on at Sonik Philippines, the first Philippine Music Conference and Festival that happened in Makati City on Oct. 4 and 5.

"If we are to be strict about it, song covers uploaded on the internet is illegal. Copyrighted music cannot be played or performed to the public without permission. They're not supposed to, without a license," FILSCAP General Manager Atty. Mark Thursday Alciso said last Friday. 

In doing so, however, one may already be committing two illegal acts: recording the video (which is a violation of the author’s reproduction rights) and streaming it online (which is a violation of the author’s right of communication to the public). These are two of the seven rights only the copyright holder can exclusively exercise over his copyrighted work, as accorded to him by the IP Code of 1998 and by the international treaties on copyright that the Philippines has acceded to, like the Berne Convention of 1887.

Copyright infringement, some forms of which are colloquially referred to as piracy, can even take place in buses where it is common to find movies being played—whether the movies are obtained legally is an altogether different story. 

The internet has, of course, made piracy more widespread, propelling the emergence of several platforms where anyone can upload song performances in an instant. Its proliferation only demands greater social awareness on the need to protect intellectual property rights and the fines and penalties violators of the IP Code may face. 

On copyrights, anyone who infringes on the rights of a copyright holder can be imprisoned for one to three years on the first offense, plus a fine ranging from P50,000 to P150,000. At third offense, this may rise to nine years of imprisonment, plus a fine ranging from P500,000 to P1.5 million. 

Bureau of Copyrights and Related Rights Director Emerson G. Cuyo elaborated on songs that have moved into the public domain, the playing and performing of which in public would not make you liable for an offense. 

Works will be in the public domain for two conditions:

  1. They are ineligible for copyright protection in the first place. Unprotected subject matter includes ideas, concepts, among others. 
  2. The copyright protection had already lapsed. Generally, the term of copyright protection spans throughout the author’s lifetime plus 50 years.

Once the period for protection lapses, anyone can do whatever with the work—exercise the rights the copyright holder used to have, and even profit from without a license.

Now with the thousands of songs being created every day, how would businesses publicly play a song at their establishments without ending up in prison or paying hefty fines—which IPOPHL is pushing to substantially increase by the way? 

Indeed, there's no easy way to go about with this. The determination of public performance or playing in itself is a tricky subject which warrants another article for elaboration. But a common start to play or perform songs for your business the legal way is by getting a license from FILSCAP. 

Accredited by IPOPHL to license copyrighted music used in public activities, FILSCAP is primarily comprised of Filipino composers, authors and publishers. The non-profit organization safeguards more than 20 million copyrighted local and foreign works or about 90% of the copyrighted musical works currently being played or performed in the country. This means, whatever song you might request singing waiters to perform may likely be part of FILSCAP's ever-growing repertoire.

The challenge will arise in getting permission from the 10% of songs that may not be with FILSCAP. We should perhaps thank the internet which is making communication much easier for us all.