Do you have to pay whenever you play Christmas songs in public?

With the holidays fast approaching, we are once again exposed to familiar songs that warm our Christmas-loving hearts. Nowadays, it is not uncommon to catch Mariah’s All I Want for Christmas is you, Britney’s My Only Wish (This Year), and Jose Mari Chan’s Christmas in our Hearts (and uhm, a bunch of his other songs), playing in our favourite malls, stores and restaurants. 

To many customers, listening to Christmas songs is a pleasant experience. And if you happen to own a store, it is tempting to play these songs in order to attract visitors. After all, studies show that listening to certain songs could affect purchasing behaviour.[1] However, how do you know if a song could be played to the public, free-of-charge?

I. Applicable Laws

Songs are covered by copyright. Our law treats musical compositions as original intellectual creations that are protected from the moment of creation.[2] For instance, song composers hold exclusive rights to public performances of their works.[3] Performers, producers of sound recordings and broadcast organizations also hold other exclusive rights over the publication of their respective works.[4] As a consequence, an establishment may have to secure licenses and pay royalties in the form of license fees in order to play copyrighted songs in public.[5] Failure to do so may result in a finding of infringement, which entails imprisonment for one to three years and payment of a fine ranging from P50,000 to P150,000 for the first offense alone.[6]

II. Exceptions

It must be noted, however, that the Intellectual Property Code lists down a number of limitations to this rule. Some acts are not considered as infringement. An example is where the recitation or performance is made strictly for a charitable institution and involves a work that has previously been lawfully made accessible to the public.[7] There is also no infringement where the use of copyrighted works amounts to fair use, as when a song is played in public for purposes like research, criticism and teaching.[8]  Notably, a recent case decided by the Court of Appeals went further and held that certain food service and drinking establishments that have  limited areas, seating capacities and speakers, are exempted from paying license fees.[9] It remains to be seen, however, whether the Supreme Court will adopt this ruling.

III. Public Domain

Most importantly, not all songs are subject to copyright. In a case, the Supreme Court held that although playing the combo in a restaurant for the purpose of entertaining and amusing customers are acts constitutive of performance for profit as contemplated by our Copyright Law, there can be no infringement if the songs played form part of the public domain.[10] Songs, whose copyright protection have already expired, move to the public domain and may henceforth be played and performed in public without liability.[11] Examples of these are Christmas classics like Jingle Bells, We Wish You a Merry Christmas and Silent Night.[12] In the Philippines, copyright protection over a work generally extends until 50 years after the author’s death.[13]

In summary, if you wish to impart the Christmas vibe to your customers, it would be wise to apply for the necessary licenses or to simply choose songs that are available in the public domain. Better yet, why not create your own Christmas jingles?

For questions regarding this article, please email us at inquiry@cfiplaw.com.

Note: The article above is for informational purposes only and does not constitute legal advice.


[1] https://www.psychologistworld.com/behavior/ambient-music-retail-psychological-arousal-customers.

[2] Sec. 172.1 (f) IP Code (1997).

[3] Sec. 177.6 IP Code (1997).

[4] Secs. 203, 208, 211 IP Code (1997).

[5] https://filscap.org/frequently-asked-questions/.

[6] Secs. 217.1 (a) IP Code (1997).

[7] Sec. 184.1 IP Code (1997).

[8] Sec. 185.1 IP Code (1997).

[9] https://www.manilastandard.net/lgu/luzon/237697/ca-upholds-ruling-vs-filscap.html.

[10] Filipino Society of Composers, Authors and Publishers, Inc. vs Benjamin Tan, G.R. No. L-36402.

[11] https://www.ipophil.gov.ph/news/how-to-perform-and-play-songs-in-public-the-legal-way/.

[12] https://library.osu.edu/site/copyright/2018/12/21/public-domain-christmas-songs/.

[13] Sec. 213.1 IP Code (1997).

Protecting Your Product Design

Did you recently create your own furniture, or accessories? Perhaps you handcrafted your own bags and shoes? If so, your creations are covered by industrial design, copyright, or trademark.

Industrial Design (or Design Patent)

A new and ornamental design may be registered as an industrial design.[1] Such registration entitles you to the exclusive use of the design for as long as fifteen years.[2] Industrial design registration can protect the designs of handicrafts, jewelries and computer components, among others.[3]

Patent or Utility Model 

Meanwhile, a design that pertains primarily to the functional aspect of a product, as opposed to being mere ornamentation, may be registered as an invention or a utility model. For example, a chair that is ergonomically designed to make long hours of sitting more comfortable may only be registered as an invention[4] or a utility model[5] even if its design also looks aesthetically pleasing. However, if the design serves as mere ornamentation (e.g., carvings or paintings on the chair’s legs) an industrial design registration is applicable.

Copyright Protection (Work of Applied Art)

A “work of applied art” is an artistic creation having utilitarian functions that are incorporated in a useful article.[6] Original ornamental designs or models for articles of manufacture, even if registrable as industrial designs, are entitled to copyright protection.[7] A useful article, however, may be copyrighted only to an extent where its pictorial, graphic, or sculptural features could be identified separately from its functional aspects. [8]

In 2019, the Taiwan IP Court ruled that Céline and Givenchy handbag designs are not copyrightable because they are primarily functional and they lack some required artistic features.[9] This is consistent with a past decision by our Supreme Court which recognized copyright protection only to works of applied art that have aesthetic features which are separable from its utilitarian aspects.[10]

Three-Dimensional Mark or Trade Dress

A product design may also be protected by a trademark. A mark is any visible sign capable of distinguishing products including a stamped or marked container of goods.[11] A sachet of a coffee, a bottle of a beer, and even the overall shape and appearance of a chocolate, even if registrable as industrial designs, may be registered as trademarks. Below are examples of three-dimensional marks or containers which have been registered as trademarks in the Philippines:

[12]        [13][14]

Summary

Product design is a complex process that involves artistic and functional consideration. New product designs may be protected by industrial design, patent, utility model, copyright, and trademark. You just need to identify the kind of protection that best suits your needs.

For questions regarding this article, email us at inquiry@cfiplaw.com.

Note: The article above is for informational purposes only and does not constitute legal advice.


[1] Sec. 113.1, IP Code (1997).

[2] Sec. 118, IP Code (1997).

[3] Sec. 113.3, IP Code (1997).

[4] An invention patent requires that an additional requirement of inventiveness or non-obviousness.

[5] Sec. 113.2, IP Code (1997).

[6] Sec. 171.10, IP Code (1997).

[7] Sec. 172.1 (h), IP Code (1997).

[8] Ching vs. Salinas, G.R. No. 161295, 29 June 2005.

[9] https://www.mondaq.com/patent/875930/can-a-bag-design-be-copyrighted

[10] Ching vs. Salinas, G.R. No. 161295, 29 June 2005.

[11] Sec. 121.1, IP Code (1997).

[12] Trademark Registration No. 14479 in the name of Elite Gold Ltd.

[13] Trademark Registration No. 123914 in the name of AB Heineken Philippines Inc.

[14] Trademark Registration No. 41997123133 in the name of Mondelez Europe GmbH.