Susan D. Villanueva | Alexander James B. Tan
In a landmark ruling issued on 25 February 2025, the Philippine Supreme Court in Filipino Society of Composers and Publishers v. Wolfpac Communications, Inc. G.R. No. 184661 (25 February 2025), the Supreme Court confronted an important question in Philippine copyright law: what distinguishes the right of public performance from the right of communication to the public under the Intellectual Property Code (“IPC”)? The case arose in the context of a mobile content distributor’s practice of allowing consumers to listen to 20-second audio samples of ringback tones before purchase.
Public Performance and Communication to the Public in the IPC
The Intellectual Property Code recognizes public performance and communication to the public as distinct economic rights. Communication to the Public is defined in Section 171.3 of the IPC as follows:
“x x x any communication to the public, including broadcasting, rebroadcasting, retransmitting by cable, broadcasting and retransmitting by cable, broadcasting and retransmitting by satellite, and includes the making of a work available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them.”
In FILSCAP v. Wolfpac, the Supreme Court recognized that communication to the public has two aspects: (a) the act of making the work available to the public; and (b) the option on the part of the members of the public to access the work from a place and time individually chosen by them.
Meanwhile, Public Performance is defined in Sec. 171.6 as:
“x x x The recitation, playing, dancing, acting or otherwise performing the work, either directly or by means of any device or process x x x 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 perceived without the need for communication within the meaning of Subsection 171. 3.”
Likewise, the Supreme Court recognized the two aspects of public performance as follows: (a) the actual performance of the work, showing the work, or making the work audible, depending on the type of work; and (b) actual or possible public perception without the need for communication to the public.
Pre-Listening is a Form of Communication to the Public
The Supreme Court therefore held that Wolfpac’s pre-listening feature constituted communication to the public. By uploading the 20-second samples to its website, Wolfpac made the works available for members of the public to access at a time and place of their choosing.
However, there was no public performance. When a consumer clicked “play,” the song sample became audible only to that individual, in a private setting, and not to a public audience. The act of rendering the work to the listener was thus private, even if the underlying availability was public.
By clarifying the scope and elements of these two rights, the Supreme Court has provided a better framework for analyzing copyright use in digital contexts. In an era where works are frequently accessed on-demand, understanding the difference between public performance and communication to the public is essential in preparing proper enforcement strategies and delineating the proper scope of the rights granted by copyright.