Asserting performers’ rights in the digital music space

The Philippines is famously a land of singers, and the 2020 pandemic spurred the emergence of a new medium for performing – through interactive livestreams and on-demand webcasts. Within this corner of the digital space, artists and performers come up with original compositions and entertaining covers. Many have gained sizeable followings on social media, all without the machinery of music labels and recording contracts we are used to.

Beneath this thriving scene, however, lies the lack of awareness of rights, especially among singer-performers, and hence the inability to fully capitalise on the economic benefits of their works. Although familiarity with copyright and associated breaches has increased through the aggressive campaigns of the Intellectual Property Office of the Philippines (IPOPHL) and corrective actions due to copyright strikes, there is still a lack of sufficient understanding when it comes to performers’ rights.

The IP Code defines a “performer” as a singer, musician, dancer or any other person who sings, acts or interprets literary and artistic works. The IP Code clearly affords protection to the performers’ rights, which include among others: (1) the right to communicate the performance to the public; (2) the right to the fixation of performance in sound recordings; and (3) the right to make available to the public of their performances as fixed in sound recordings.

For instance, if singer Gigi performs a Cayabyab musical composition, she has the exclusive right, among others, to authorise the fixation of her performance, and to authorise the TV broadcast of her live performance or the performance as fixed in the sound recording. The composer retains the copyright to the musical composition, while Gigi has performer’s rights and is entitled to remuneration when these are made available to the public, as per section 203 of the IP Code.

Noticeably absent in the IP Code are provisions pertaining to performers in the audiovisual field. This gap was addressed in 2021, when the Philippines acceded to the Beijing Treaty on Audiovisual Performances (BTAP). This treaty seeks to enhance the protection for singers, musicians, actors and other performers in audiovisual performances, adapting to the demands of the Netflix/Youtube/Tiktok age.

Infringements may arise, such as in the case of FILSCAP v Anrey Inc. (9 August 2022), where the Supreme Court tackled the issue of whether the playing of radio broadcasts as background music using loudspeakers in an establishment for profit violates copyright.

The court held that under the doctrine of multiple performances, a radio or television transmission can create multiple performances at once, and that a radio reception creates a performance separate from the broadcast. The patrons of the commercial establishment are deemed “new public”.

Applying the Anrey case, if an establishment plays radio broadcasts of Gigi’s sound recordings without acquiring the necessary licence, it may be liable for infringement even if the radio station’s broadcast is itself covered by a licence. The reception of the broadcast is a new public performance and is thus entitled to protection. Meanwhile, if Gigi’s audiovisual

performances are distributed, or re-streamed, or made available to a “new public” in a foreign jurisdiction without a licence, she can go after those establishments, pursuant to the BTAP.

The IP Code further provides that the limitations to copyright in section 184 and the fair use provision in section 185 apply mutatis mutandis (with the necessary changes) to performers’ rights. For there to be a finding of infringement of a performer’s rights, the subject acts should not fall under these sections.

For now, the new breed of creatives and performers are rather more focused on making content and building their fan base than going after violators of their intellectual property rights. They operate independently and generally lack the resources to prosecute. Joining organisations would empower them to better protect their rights.

The Performers’ Rights Society of the Philippines (PRSPh) is an organisation recognised by the IPOPHL that aims to protect and enforce the rights of Filipino performers. It negotiates licence agreements with users of their performances, such as radio and TV stations, cable stations, websites, restaurants, hotels, etc. The PRSPh is also recognised by the World Intellectual Property Organisation (WIPO) and other international collective management associations.

The performers’ rights are not second class to copyright. Performers, such as singers, musicians and dancers are integral to furthering the arts. They bring their unique interpretation of the original works, adding value and overall artistic merit. Performers bring life to these works, inspiring the creation of more original works.

While love for music is ingrained in the Filipino DNA, knowledge pertaining to these associated rights are not. By educating creatives and performers of their rights, and by facilitating the efficient management of their rights through royalty and licensing structures, the Philippines can evolve a stronger creative economy.

Ernest Luigi A Manzanares is an associate at Federis & Associates Law Offices in Makati City