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.

This article was written by Federis & Associates Law Office for Asian Business
Law Journal. See the link here