Held
No, the use of sample ringtones in the “pre-listening function” on Dynamite’s website does not constitute public performance, under Section 171.6 and Section 177.6 of the Intellectual Property Code, as clarified by the Supreme Court in Filipino Society Of Composers v. Wolfpac Communications, G.R. No. 184661 (2025-02-25).
Explanation
Public performance, as defined in Section 171.6 of the Intellectual Property Code, involves making a work audible at a place where persons outside the normal circle of family and closest social acquaintances are or can be present, without the need for communication as defined in Section 171.3. The key element is the presence or potential presence of a public audience beyond the private circle. Section 177.6 grants the copyright owner the exclusive right to authorize or prevent public performance of the work. The Supreme Court in the Wolfpac case clarified that the act of making sample ringtones available for pre-listening on a website does not amount to public performance because the actual listening is done privately by potential consumers, not in a public setting. The Court emphasized that the prohibition is against public performance, not performance in general. The website merely provides the means for private individuals to access the samples, which is not the same as performing the work publicly.
Application to the facts
Dynamite Communications, Inc.’s “pre-listening function” allows prospective consumers to listen to a 20-second portion of a song privately on their own devices before deciding to download the ringback tone. This situation is analogous to the Wolfpac case, where the Supreme Court held that such pre-listening does not constitute public performance because the listening is done privately by individual users, not in a public place or to a public audience. The users are within their own private circles, and there is no public perception or gathering of persons outside these circles. Dynamite’s role is limited to providing the technological means for private access, not performing the work publicly. Therefore, the use of sample ringtones in the pre-listening function does not infringe the exclusive right of public performance under the Intellectual Property Code.
"171.6. 'Public performance', in the case of a work other than an audiovisual work, is the recitation, playing, dancing, acting or otherwise performing the work, either directly or by means of any device or process; ... and, in the case of a sound recording, making the recorded sounds audible at a place or at places where persons outside the normal circle of a family and that family's closest social acquaintances are or can be present, irrespective of whether they are or can be present at the same place and at the same time, or at different places and/or at different times, and where the performance can be percei…
"177.6. Public performance of the work;"
[[CASE HOLDING — Filipino Society Of Composers v. Wolfpac Communications, G.R. No. 184661 (2025-02-25)]] "Such performance is not actionable because the potential consumers performed the musical work in private before deciding whether they would purchase the ringback tone. There is no public perception in such a way that persons outside the potential consumer's normal circle of family and their family's closest social acquaintances are or can be present. It must be stressed that what is prohibited is a public performance, not performance per se. ... Hence, the circumstances do not warrant the finding of public performance when Wolfpac's participation ends in providing the means for the public to access the sample ringtones."
Laws retrieved
Everything retrieval surfaced, not only what the answer relied on. Read the ones it quotes.
- Section 177, Intellectual Property Code with the 2020 Revised Rules of Procedure for Intellectual Property Rights Cases
- Section 171, Intellectual Property Code with the 2020 Revised Rules of Procedure for Intellectual Property Rights Cases
- Section 184, Intellectual Property Code with the 2020 Revised Rules of Procedure for Intellectual Property Rights Cases
- Section 185, Intellectual Property Code with the 2020 Revised Rules of Procedure for Intellectual Property Rights Cases
- Section 202, Intellectual Property Code with the 2020 Revised Rules of Procedure for Intellectual Property Rights Cases
- Section 203, Intellectual Property Code with the 2020 Revised Rules of Procedure for Intellectual Property Rights Cases
"Whether the use of sample ringtones in the pre-listening function on Wolfpac's website constitutes public performance or communication to the public. II. Whether Wolfpac's use of the samples constitutes copyright infringement. THE COURT'S RULING The Petition is partly meritorious. The deeds of assignments in favor of Wolfpac do not include the assignment of the songs for use in a pre-listening device. However, the Court cannot hold Wolfpac liable for copyright infringement in using the sample ringtones under the fair use doctrine. ... Such performance is not actionable because the potential consumers performed t…
"Thus, insofar as this case is concerned, it is suggested that "Public Performance'' under Section 177.6 includes any communication to the public as defined in Section 171.6 and under Article 11 and Article 11bis of the Berne Convention as explained in the 1978 WIPO Guide to the Berne Convention. On the other hand, "Other communication to the public" under Section 177.7 covers all other "communication to the public" as defined in Section 171.3 and not covered in Section 171.6. In particular, the term "Other communication to the public" includes interactive on-demand systems and digital sharing on the Internet. Ex…
Cases retrieved
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