On 08 September 2023, the Intellectual Property Office of the Philippines (“IPOPHL”) issued IPOPHL Memorandum Circular No. 023, s. 2023, entitled “Implementing Rules and Regulations of Sound Performers and Producers of Sound Recordings”, otherwise known as the IRR on Sound Recording Rights (“ISRR”).
The ISRR applies to live performances and performances fixed in sound recordings, as well as to producers of sound recordings and sound recordings which are first published in the Philippines or in another Contracting State. On the other hand, the ISRR does not apply to performances which are not performed by natural persons or executed prior to 01 January 1978, and sound recordings which are recorded prior to 01 January 1978.
Under the ISRR, sound performers, with respect to their live aural performances or performances fixed in sound recordings, are accorded moral and economic rights. Their moral rights include the right of attribution and the right of integrity, which rights are exclusive to performers who are natural persons and cannot be may be waived writing. With respect to their economic rights, the same the right to authorize broadcasting and the right to authorize fixation, among others. Such economic rights may be transferred, but such transfer shall not mean a waiver of the performer’s moral rights.
Meanwhile, producers of sound recordings are accorded only economic rights, namely, the right of reproduction, the right of distribution, the right of rental, and the making available right.
In terms of protection, moral rights are protected from the death of the performer until the expiry of the economic rights. Such moral rights may be exercised by the heirs or the government when protection is claimed. On the other hand, economic rights are protected for fifty (50) years from the end of the year in which the performance or sound recording took place or was .
It must be noted, however, that the ISRR is subject to the following limitations and exceptions: first, it is subject to the limitations and exceptions provided for under Chapter VIII on the Rights of Patentees and Infringement of Patents in Republic Act No. 8293, otherwise known as the “Intellectual Property Code of the Philippines” (“IP Code”), and second, once the sound performer has exercised the economic right to authorize broadcasting or to authorize fixation, the economic rights of reproduction, distribution, rental, and the making available can no longer be exercised.
With respect to remuneration, sound performers and producers of sound recordings whose performances and sound recordings are broadcasted to the public or publicly performed are now entitled to a single equitable renumeration (“SER”) per use of the sound recording from the user of the sound recording, to be shared equally by the performer/s and the producer in the absence of any agreement. In case the performers, producers of sound recordings and broadcast organizations enter into a written agreement on the amount of the SER, said written agreement must be designed to be more favorable to the performers. By agreement, payment of the SER may be made to the performer, the producer of the sound recording, or the accredited Collective Management Office (“CMO”) of the performer or producer of the sound recording has been duly authorized in writing, to the exclusion of others.
Failure to comply with the payment of a SER shall result in the establishment of a One Stop Licensing System (“OSLS”), the structure and mechanics of which shall be promulgated and monitored by the Bureau of Copyright and Other Related Rights (“Bureau”).
Moreover, payment of the SER cannot be withheld unless the claimant is patently not entitled thereto. What sufficient evidence of entitlement a certified true copy of the local CMO’s accreditation certificate with IPOPHL or the foreign CMO’s membership list, or both, as well as the reciprocal agreement with the locally accredited CMO.
Lastly, on registration, the Bureau shall continue to accept applications of sound recordings and shall review the procedures every two (2) years from the of the ISRR. The Bureau shall commence acceptance of applications for registration of performances within six (6) months from the of the ISRR, which shall be fifteen (15) days from publication in a newspaper of general circulation.
In sum, the ISRR lays down the guidelines in the implementation of the provisions of the IP Code and the World Intellectual Property Organization Performances and Phonograms Treaty (“WPPT”) on the rights of sound performers and producers of sound recordings, the various economic, social, cultural and technological developments in the realm of the arts. The ISRR effectively strikes a balance between the rights of sound performers and producers of sound recordings on one hand, and the rights of the public on the other.
MA. YSABEL LAURA G. MIRANDA