what is sale?

Explanation

A “determinate thing” is the specific thing the parties are talking about as the subject of the sale, not something still left entirely unspecified. The Supreme Court also describes sale as a consensual contract, meaning the contract is perfected by the meeting of minds on the thing and the price, even if the goods are not yet delivered. (National Grains Authority v. Intermediate Appellate Court, G.R. No. 74470 (1989-03-08))

This is different from a situation where there is no meeting of minds on both the thing and the price, because the perfection of a sale depends on that agreement. (National Grains Authority v. Intermediate Appellate Court, G.R. No. 74470 (1989-03-08))

Explanation

Public performance, for a sound recording, is making recorded sounds audible at a place or places where persons outside the normal circle of a family and that family’s closest social acquaintances are or can be present, and the performance must be perceivable without the need for the communication defined as “communication to the public” in the statute (Intellectual Property Code, Section 171.6).

The law distinguishes “communication to the public” from public performance by defining “communication to the public” as transmission to the public otherwise than by broadcasting, and for purposes of Section 209 it also covers making sounds or representations of sounds fixed in a sound recording audible to the public (Intellectual Property Code, Section 171.9). Separately, communication-to-the-public includes making a work available to the public by wire or wireless means so that members of the public may access the work from a place and at a time individually chosen by them (Intellectual Property Code, Section 171.3).

Producers of sound recordings and performers each have exclusive rights that include “making available to the public” in a way that members of the public may access the recording or performance from individually chosen places and times (Intellectual Property Code, Section 208.4; Intellectual Property Code, Section 203.5). When the act complained of is a website or interactive access function, these “making available” rights map more closely to “communication to the public” than to the statutory definition of “public performance,” because the statutory definition of public performance for sound recordings focuses on making sounds audible at places where a particular public presence exists, not on individualized access where users control when they become audible.

The Supreme Court’s holding in Filipino Society Of Composers v. Wolfpac Communications is that a pre-listening function on a website results only in public communication (making samples available) and not public performance on the operator’s part, because the consumers themselves make the samples audible before deciding whether to download, so the statutory conception of public performance is not met (Filipino Society Of Composers v. Wolfpac Communications, G.R. No. 184661, 2025-02-25).

Application to the facts

Dynamite’s “pre-listening function” lets prospective consumers click to listen to a 20-second portion of a song before downloading the ringback tone, and the key circumstance is that the samples become audible because the prospective consumers choose to play them, not because Dynamite plays them as a public performance at a place where a non-family public is present.

Under the statutory definition of public performance for sound recordings, the question turns on whether the recorded sounds are made audible at a place or places where persons outside the normal circle of a family and that family’s closest social acquaintances are or can be present, and without the need for communication within the meaning of Section 171.3 (Intellectual Property Code, Section 171.6). Dynamite’s website function, as described, does not match that public-presence, place-based aspect of Section 171.6 because it is an interactive on-demand access mechanism: each prospective consumer can access the sample from their chosen place and time by clicking to make the sample audible.

Following the Supreme Court’s ruling in Filipino Society Of Composers v. Wolfpac Communications, the same structural features lead to the same characterization: only public communication is present when a pre-listening function is made available to the public, and there is no public performance by the operator because the potential consumers are the ones who make the samples audible before deciding to purchase or download (Filipino Society Of Composers v. Wolfpac Communications, G.R. No. 184661, 2025-02-25). Therefore, Dynamite’s use of the sample ringtones in its website pre-listening function does not constitute public performance.

Even though performers and producers can have exclusive rights over “making available to the public” of performances and sound recordings in the interactive access sense (Intellectual Property Code, Section 203.5; Intellectual Property Code, Section 208.4), the question you asked is specifically whether the sample use in the pre-listening function constitutes public performance, and under the statutory definition and the controlling Supreme Court ruling, it does not.