Session 1 - IPL

A. IP in General
 Articles 712, 721 – 724, NCC

Article 712. Ownership is acquired by occupation and by intellectual creation.

Ownership and other real rights over property are acquired and transmitted by law, by
donation, by testate and intestate succession, and in consequence of certain contracts, by
tradition.

They may also be acquired by means of prescription.

Article 721. By intellectual creation, the following persons acquire ownership:

(1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or
other work;

(2) The composer; as to his musical composition;

(3) The painter, sculptor, or other artist, with respect to the product of his art;

(4) The scientist or technologist or any other person with regard to his discovery or invention. (n)

Article 722. The author and the composer, mentioned in Nos. 1 and 2 of the preceding article,
shall have the ownership of their creations even before the publication of the same. Once their
works are published, their rights are governed by the Copyright laws.

The painter, sculptor or other artist shall have dominion over the product of his art even before it
is copyrighted.

The scientist or technologist has the ownership of his discovery or invention even before it is
patented. (n)

Article 723. Letters and other private communications in writing are owned by the person to
whom they are addressed and delivered, but they cannot be published or disseminated without
the consent of the writer or his heirs. However, the court may authorize their publication or
dissemination if the public good or the interest of justice so requires. (n)

Article 724. Special laws govern copyright and patent. (429a)

 Understanding Copyright and Related Rights

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic
works; designs; and symbols, names and images used in commerce.
Copyright (or author’s right) is a legal term used to describe the rights that creators have over
their literary and artistic works. Works covered by copyright range from books, music, paintings,
sculpture, and films, to computer programs, databases, advertisements, maps, and technical
drawings.

Industrial property takes a range of forms, including patents for inventions, industrial designs
(aesthetic creations related to the appearance of industrial products), trademarks, service
marks, layout-designs of integrated circuits, commercial names and designations, geographical
indications and protection against unfair competition.

 Section 4, IP Code

Sec. 4. Definitions.-

4.1. The term "intellectual property rights" consists of:

[a] Copyright and Related Rights;

[b] Trademarks and Service Marks;

[c] Geographic Indications;

[d] Industrial Designs;

[e] Patents;

[f] Layout-Designs (Topographies) of Integrated Circuits; and

[g] Protection of Undisclosed Information

Kho vs Court of Appeal, Summerville and Ang Tiam Chay

Facts: Petitioner Elidad C. Kho filed a complaint for injunction and damages against the
respondents Summerville General Merchandising and Company (Summerville, for brevity) and
Ang Tiam Chay. The petitioners complaint alleges that petitioner, doing business under the
name and style of KEC Cosmetics Laboratory, is the registered owner of the copyrights Chin
Chun Su and Oval Facial Cream Container/Case, as shown by Certificates of Copyright
Registration No. 0-1358 and No. 0-3678; that she also has patent rights on Chin Chun Su & Device
and Chin Chun Su for medicated cream after purchasing the same from Quintin Cheng, the
registered owner thereof in the Supplemental Register of the Philippine Patent Office. that
respondent Summerville advertised and sold petitioners cream products under the brand name
Chin Chun Su, in similar containers that petitioner uses, thereby misleading the public, and
resulting in the decline in the petitioners business sales and income; and, that the respondents
should be enjoined from allegedly infringing on the copyrights and patents of the petitioner. The
respondents, on the other hand, alleged as their defense that Summerville is the exclusive and
authorized importer, re-packer and distributor of Chin Chun Su products manufactured by Shun
Yi Factory of Taiwan; that the said Taiwanese manufacturing company authorized Summerville
to register its trade name Chin Chun Su Medicated Cream with the Philippine Patent Office and
other appropriate governmental agencies; that KEC Cosmetics Laboratory of the petitioner
obtained the copyrights through misrepresentation and falsification; and, that the authority of
Quintin Cheng, assignee of the patent registration certificate, to distribute and market Chin
Chun Su products in the Philippines had already been terminated by the said Taiwanese
Manufacturing Company. The Trial Court granted the injunction. On appeal, the CA ruled in
favor of respondents, holding that registration of the trademark or brandname Chin Chun Su by
KEC with the supplemental register of the Bureau of Patents, Trademarks and Technology
Transfer cannot be equated with registration in the principal register, which is duly protected by
the Trademark Law.

Issue: Whether or not petitioner is entitled to the exclusive use of the trademark Chin Chun Su
based on her copyright and patent registration over the product.

Held: No. Trademark, copyright and patents are different intellectual property rights that cannot
be interchanged with one another. A trademark is any visible sign capable of distinguishing the
goods (trademark) or services (service mark) of an enterprise and shall include a stamped or
marked container of goods. In relation thereto, a trade name means the name or designation
identifying or distinguishing an enterprise. Meanwhile, the scope of a copyright is confined to
literary and artistic works which are original intellectual creations in the literary and artistic
domain protected from the moment of their creation. Patentable inventions, on the other hand,
refer to any technical solution of a problem in any field of human activity which is new, involves
an inventive step and is industrially applicable.

Petitioner has no right to support her claim for the exclusive use of the subject trade name and
its container. The name and container of a beauty cream product are proper subjects of a
trademark inasmuch as the same falls squarely within its definition. In order to be entitled to
exclusively use the same in the sale of the beauty cream product, the user must sufficiently
prove that she registered or used it before anybody else did. The petitioner’s copyright and
patent registration of the name and container would not guarantee her the right to the
exclusive use of the same for the reason that they are not appropriate subjects of the said
intellectual rights. Consequently, a preliminary injunction order cannot be issued for the reason
that the petitioner has not proven that she has a clear right over the said name and container to
the exclusion of others, not having proven that she has registered a trademark thereto or used
the same before anyone did.

Ching vs Salinas

Facts: Petitioner Ching is a maker and manufacturer of a utility model, Leaf Spring Eye Bushing
for Automobile, for which he holds certificates of copyright registration. Petitioner’s request to
the NBI to apprehend and prosecute illegal manufacturers of his work led to the issuance of
search warrants against respondent Salinas, alleged to be reproducing and distributing said
models in violation of the IP Code. Respondent moved to quash the warrants on the ground that
petitioner’s work is not artistic in nature and is a proper subject of a patent, not copyright.
Petitioner insists that the IP Code protects a work from the moment of its creation regardless of its
nature or purpose. The trial court quashed the warrants. Petitioner argues that the copyright
certificates over the model are prima facie evidence of its validity. CA affirmed the trial court’s
decision.
Issues: (1) Whether or not petitioner’s model is an artistic work subject to copyright protection.

(2) Whether or not petitioner is entitled to copyright protection on the basis of the certificates of
registration issued to it.

Held: (1) NO. As gleaned from the specifications appended to the application for a copyright
certificate filed by the petitioner, the said Leaf Spring Eye Bushing for Automobile and Vehicle
Bearing Cushion are merely utility models. As gleaned from the description of the models and
their objectives, these articles are useful articles which are defined as one having an intrinsic
utilitarian function that is not merely to portray the appearance of the article or to convey
information. Plainly, these are not literary or artistic works. They are not intellectual creations in
the literary and artistic domain, or works of applied art. They are certainly not ornamental
designs or one having decorative quality or value. Indeed, while works of applied art, original
intellectual, literary and artistic works are copyrightable, useful articles and works of industrial
design are not. A useful article may be copyrightable only if and only to the extent that such
design incorporates pictorial, graphic, or sculptural features that can be identified separately
from, and are capable of existing independently of the utilitarian aspects of the article. In this
case, the bushing and cushion are not works of art. They are, as the petitioner himself admitted,
utility models which may be the subject of a patent.

(2) NO. No copyright granted by law can be said to arise in favor of the petitioner despite the
issuance of the certificates of copyright registration and the deposit of the Leaf Spring Eye
Bushing and Vehicle Bearing Cushion. Indeed, in Joaquin, Jr. v. Drilon and Pearl & Dean (Phil.),
Incorporated v. Shoemart, Incorporated, the Court ruled that:

Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent
right granted by the statute, and not simply a pre-existing right regulated by it. Being a statutory
grant, the rights are only such as the statute confers, and may be obtained and enjoyed only
with respect to the subjects and by the persons, and on terms and conditions specified in the
statute. Accordingly, it can cover only the works falling within the statutory enumeration or
description.

Ownership of copyrighted material is shown by proof of originality and copyrightability. To

discharge his burden, the applicant may present the certificate of registration covering the work
or, in its absence, other evidence. A copyright certificate provides prima facie evidence of
originality which is one element of copyright validity. It constitutes prima facie evidence of both
validity and ownership and the validity of the facts stated in the certificate.

 Section 14, Article XII, Sections 10, 13, 15 and 16, Article XIV, Philippine Constitution

ARTICLE XII

NATIONAL ECONOMY AND PATRIMONY

Section 14. The sustained development of a reservoir of national talents consisting of Filipino
scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled
workers and craftsmen in all fields shall be promoted by the State. The State shall encourage
appropriate technology and regulate its transfer for the national benefit. The practice of all
professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.

ARTICLE XIV

EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS

Section 10. Science and technology are essential for national development and progress. The
State shall give priority to research and development, invention, innovation, and their utilization;
and to science and technology education, training, and services. It shall support indigenous,
appropriate, and self-reliant scientific and technological capabilities, and their application to
the country's productive systems and national life.

Section 13. The State shall protect and secure the exclusive rights of scientists, inventors, artists,
and other gifted citizens to their intellectual property and creations, particularly when beneficial
to the people, for such period as may be provided by law.

Section 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve,
promote, and popularize the nation's historical and cultural heritage and resources, as well as
artistic creations.

Section 16. All the country's artistic and historic wealth constitutes the cultural treasure of the
nation and shall be under the protection of the State which may regulate its disposition.

 Section 2, IP Code

Sec. 2. Declaration of State Policy. - The State recognizes that an effective intellectual and
industrial property system is vital to the development of domestic and creative activity,
facilitates transfer of technology, attracts foreign investments, and ensures market access for our
products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other
gifted citizens to their intellectual property and creations, particularly when beneficial to the
people, for such periods as provided in this Act.

 REPUBLIC ACT No. 10055

"Philippine Technology Transfer Act of 2009"

Salient provisions:

Objective. - This Act aims to promote and facilitate the transfer, dissemination, and effective
use, management, and commercialization of intellectual property, technology and knowledge
resulting from R&D funded by the government for the benefit of national economy and
taxpayers.

Definitions:

(a)"Intellectual Property (IP)" is the term used to describe intangible assets resulting from the
creative work of an individual or organization. IP also refers to creations of the mind, such as
inventions, literary and artistic works, and symbols, names, images and designs used in
commerce.

(b)"Intellectual Property Rights (IPRs)" refer to those rights recognized and protected in Republic
Act No. 8293, otherwise known as the "Intellectual Property Code of the Philippines".

(g)"Government Funding Agency (GFA)" refers to any government agency or instrumentality, or

government-owned and/or -controlled corporation that provides research grants and other
technical and material support, from government appropriations and resources and those
sourced from government-managed Official Development Assistance (ODA) funds.

(i)"Research and Development Institute or Institution (RDI)" refers to a public or private

organization, association, partnership, joint venture, higher education institution or corporation
that performs R&D activities and is duly registered and/or licensed to do business in the
Philippines, or otherwise with legal personality in the Philippines. In the case of private RDIs, they
shall be owned solely by the citizens of the Philippines or corporations or associations at least
sixty per centum (60%) of the capital of which is owned by such citizens. This does not include
RDIs covered by international bilateral or multilateral agreements.

(o)"Technology transfer" refers to the process by which one party systematically transfers to
another party the knowledge for the manufacture of a product, the application of a process, or
rendering of a service, which may involve the transfer, assignment or licensing of IPRs.

(r)"Research and Development (R&D)" refers to creative work undertaken on a systematic basis in
order to increase the stock of knowledge, including knowledge of man, culture and society, and
to use this stock of knowledge to devise new applications.

Coverage. - (a)All R&D activities carried out on behalf and for the interest of the Philippine
government by RDIs receiving grants directly from the GFAs:

(b)All intellectual property rights derived from R&D activities funded by government;

(c)All government agencies that fund R&D activities as well as provide financial, technical or
material support to such R&D activities; and

(d)All institutions that implement government funded R&D.

Ownership of Intellectual Property and Intellectual Property Rights. - The ownership of IPs and IPRs
shall be governed by the following:

(a)In recognition of the fact that RDIs are in a better position to identify the potential for
economic utilization of IPs and IPRs subject to their possession of the right skills and management
capability, the ownership of IPs and IPRs derived and generated from research funded by the
GFA, whether such funding is in whole or in part, shall, in general, be vested in the RDI that
actually performed the research, except in any of the following circumstances:

(1)When the RDI has entered into a public, written agreement sharing, limiting, waiving or
assigning its ownership of the IPs or IPRs generated from its research in favor of the GFA:
Provided, That the same may only be voluntarily executed by the RDI to protect public interest,
and in particular involves national security, nutrition, health, or the development of other vital
sectors;

(2)In case of failure of the RDI to disclose potential IPRs to the GFA, whereupon the GFA shall
assume the rights to the potential IPR;

(3)In case of failure of the RDI to initiate the protection of potential IPRs within a reasonable time
from confidential disclosure to the GFA, which shall in no case exceed three (3) months from
public disclosure, whereupon the GFA shall assume the rights to the potential IPR; and

(4)In case the RDI ceases to become a Filipino corporation as defined in Article I, Section 4(i) of
this Act.

(b)In case of collaborative research where two (2) or more RDIs conducted the research funded
by the GFA, the RDIs shall own the IPRs jointly or as otherwise stipulated in the research
agreement between them: Provided, That any research agreement between RDIs and other
funding entities shall be made with the full knowledge of the GFA: Provided, further, That the
agreement shall strictly be in accordance with the provisions of this Act.

(c)Nothing in this Article shall modify, amend, derogate or prejudice IPs that will be owned by
employees of the RDIs under the IP Code and other existing laws.

Use by Government or Third Person Authorized by Government and/or Compulsory Licensing. -

This Act shall adopt the grounds, terms and conditions for the use by government or third person
authorized by government, and/or compulsory licensing as stated in the IP Code of all IPRs
generated under this Act.

Assumption of Ownership of Potential IPRs. - The GFA and/or the parent agency may assume
ownership of any potential IPRs in cases of national emergency or other circumstances of
extreme urgency, or where the public interest requires, and in particular concerns for national
security, nutrition, health, or the development of other vital sectors of the national economy, as
determined by the head of the parent agency. Such determination shall be made within thirty
(30) days after the receipt of the recommendation of the Head of the GFA. Such
recommendation shall be made within thirty (30) days upon the discovery of the potential IPR by
the GFA or the disclosure of the same by the RDI pursuant to Section 8(c) of this Act, or upon
written notice or petition by other government agencies, or other interested persons. In cases
where the parent agency itself is acting as the GFA, the Head of the parent agency may make
such determination motu proprio, or upon written notice or petition by other government
agencies or other interested parties. The right to the potential IPR shall be assumed by the GFA
upon written order, declaration or determination by the Department Secretary or Head of the
parent agency. The department or the agency that has functional jurisdiction over the
technology or IPRs shall be deemed as the parent agency,

The determination by the Secretary or the Head of the parent agency of cases falling under the
first paragraph of the right to the potential IPR to be vested to the GFA and/or parent agency
shall be subject to the following conditions:

(a)The determination must be accompanied by an analysis and justification of such

reason(s);
 (b)The RDI may file with the Secretary or Head of the parent agency an opposition to
such determination within fifteen (15) calendar days from notice or publication of the
written determination;

(c)The assumption of the rights to the potential IPR by the GFA shall carry with it the
obligation to equitably share with the RDI or other funding agencies any profits
generated from the IPR; and

(d)The rights to the potential IPR shall revert to the RDI upon the cessation of the
existence of the cases under this section as determined by the Secretary or Head of the
parent agency motu proprio or by petition of the RDI.

Except where otherwise provided by the IP Code, in all cases arising from the implementation of
this article, no court, except the Supreme Court of the Philippines, shall issue any temporary
restraining order or preliminary injunction or such other provisional remedies that will prevent its
immediate execution.

http://ateneolawjournal.com/Media/uploads/8d3deff451c10697bdf90e0495bb54
33.pdf READ
B. Copyright: WHAT WORKS ARE PROTECTED; WHAT WORKS ARE NOT

CHAPTER II

ORIGINAL WORKS

Sec. 172. Literary and Artistic Works. -

172.1 Literary and artistic works, hereinafter referred to as "works", are original intellectual
creations in the literary and artistic domain protected from the moment of their creation and
shall include in particular:

(a) Books, pamphlets, articles and other writings;

(b) Periodicals and newspapers;

(c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not
reduced in writing or other material form;

(d) Letters;

(e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in

dumb shows;

(f) Musical compositions, with or without words;

(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other

works of art; models or designs for works of art;
 (h) Original ornamental designs or models for articles of manufacture, whether or not
registrable as an industrial design, and other works of applied art;

(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to
geography, topography, architecture or science;

(j) Drawings or plastic works of a scientific or technical character;

(k) Photographic works including works produced by a process analogous to photography;

lantern slides;

(l) Audiovisual works and cinematographic works and works produced by a process
analogous to cinematography or any process for making audio-visual recordings;

(m) Pictorial illustrations and advertisements;

(n) Computer programs; and

(o) Other literary, scholarly, scientific and artistic works.

172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form
of expression, as well as of their content, quality and purpose. (Sec. 2, P. D. No. 49a)

Chapter III

DERIVATIVE WORKS

Sec. 173. Derivative Works. -

173.1. The following derivative works shall also be protected by copyright:

(a) Dramatizations, translations, adaptations, abridgments, arrangements, and other

alterations of literary or artistic works; and

(b) Collections of literary, scholarly or artistic works, and compilations of data and other
materials which are original by reason of the selection or coordination or arrangement of their
contents. (Sec. 2, [P] and [Q], P. D. No. 49)

173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected
as a new works: Provided however, That such new work shall not affect the force of any
subsisting copyright upon the original works employed or any part thereof, or be construed to
imply any right to such use of the original works, or to secure or extend copyright in such original
works. (Sec. 8, P. D. 49; Art. 10, TRIPS)

Sec. 174. Published Edition of Work. - In addition to the right to publish granted by the author, his
heirs or assigns, the publisher shall have a copy right consisting merely of the right of
reproduction of the typographical arrangement of the published edition of the work. (n)

Chapter IV

WORKS NOT PROTECTED

Sec. 175. Unprotected Subject Matter. - Notwithstanding the provisions of Sections 172 and 173,
no protection shall extend, under this law, to any idea, procedure, system method or operation,
concept, principle, discovery or mere data as such, even if they are expressed, explained,
illustrated or embodied in a work; news of the day and other miscellaneous facts having the
character of mere items of press information; or any official text of a legislative, administrative or
legal nature, as well as any official translation thereof. (n)

Sec. 176. Works of the Government. -

176.1. No copyright shall subsist in any work of the Government of the Philippines. However,
prior approval of the government agency or office wherein the work is created shall be
necessary for exploitation of such work for profit. Such agency or office may, among other
things, impose as a condition the payment of royalties. No prior approval or conditions shall be
required for the use of any purpose of statutes, rules and regulations, and speeches, lectures,
sermons, addresses, and dissertations, pronounced, read or rendered in courts of justice, before
administrative agencies, in deliberative assemblies and in meetings of public character. (Sec. 9,
First Par., P. D. No. 49)

176.2. The Author of speeches, lectures, sermons, addresses, and dissertations mentioned in
the preceding paragraphs shall have the exclusive right of making a collection of his works. (n)

176.3. Notwithstanding the foregoing provisions, the Government is not precluded from
receiving and holding copyrights transferred to it by assignment, bequest or otherwise; nor shall
publication or republication by the government in a public document of any work in which
copy right is subsisting be taken to cause any abridgment or annulment of the copyright or to
authorize any use or appropriation of such work without the consent of the copyright owners.

 Joaquin vs Drilon

Facts: BJ Productions Inc. (BJPI) was the holder of copyright over the show Rhoda and Me. It
holds rights over the show’s format and style of presentation. In 1991, BJPI’s president Francisco
Joaquin saw on TV – RPN 9’s show It’s a Date, a show which is basically the same as Rhoda and
Me. He eventually sued Gabriel Zosa, the manager of the show It’s a Date. The investigating
prosecutor found probable cause against Zosa. Zosa later sought a review of the prosecutor’s
resolution before the Secretary of Justice (Franklin Drilon). Drilon reversed the findings of the fiscal
and directed him to dismiss the case against Zosa. Petitioners assert that the format of Rhoda
and Me is a product of ingenuity and skill and is thus entitled to copyright protection. It is their
position that the presentation of a point-by-point comparison of the formats of the two shows
clearly demonstrates the nexus between the shows and hence establishes the existence of
probable cause for copyright infringement.

ISSUE: Whether or not the IXL Productions violate copyright law in continuing to air “It’s a Date”?

HELD: No. To begin with, the format of a show is not copyrightable. The format or mechanics of a
television show is not included in the list of protected works in 2 of P.D. No. 49. For this reason, the
protection afforded by the law cannot be extended to cover them.
Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent
right granted by the statute, and not simply a pre-existing right regulated by the statute. Being a
statutory grant, the rights are only such as the statute confers, and may be obtained and
enjoyed only with respect to the subjects and by the persons, and on terms and conditions
specified in the statute.i[12]

Since . . . copyright in published works is purely a statutory creation, a copyright may be

obtained only for a work falling within the statutory enumeration or description.

The essence of copyright infringement is the copying, in whole or in part, of copyrightable

materials as defined and enumerated in Section 2 of PD. No. 49 (Copyright Law). Apart from the
manner in which it is actually expressed, however, the idea of a dating game show is a non-
copyrightable material. Ideas, concepts, formats, or schemes in their abstract form clearly do
not fall within the class of works or materials susceptible of copyright registration as provided in
PD. No. 49. Petitioner BJPIs copyright covers audio-visual recordings of each episode of
Rhoda and Me, as falling within the class of works mentioned in P.D. 49, 2(M), to wit:

Cinematographic works and works produced by a process analogous to

cinematography or any process for making audio-visual recordings;

The copyright does not extend to the general concept or format of its dating game
show. Accordingly, by the very nature of the subject of petitioner BJPIs copyright, the
investigating prosecutor should have the opportunity to compare the videotapes of the
two shows.

Mere description by words of the general format of the two dating game shows is
insufficient; the presentation of the master videotape in evidence was indispensable to
the determination of the existence of probable cause.

Further, BJPI should have presented the master videotape of the show in order to show the
linkage between the copyright show (Rhoda and Me) and the infringing show (It’s a Date). This is
based on the ruling in 20th Century Fox vs CA (though this has been qualified by Columbia
Pictures vs CA, this is still good law). Though BJPI did provide a lot of written evidence and
description to show the linkage between the shows, the same were not enough. A television
show includes more than mere words can describe because it involves a whole spectrum of
visuals and effects, video and audio, such that no similarity or dissimilarity may be found by
merely describing the general copyright/format of both dating game shows.

 Filipino Society of Composers vs Tan

Facts: Plaintiff-appellant is a non-profit association of authors, composers and publishers. Said

association is the owner of certain musical compositions among which are the songs entitled:
"Dahil Sa Iyo", "Sapagkat Ikaw Ay Akin," "Sapagkat Kami Ay Tao Lamang" and "The Nearness Of
You." On the other hand, defendant-appellee is the operator of a restaurant known as "Alex
Soda Foundation and Restaurant" where a combo with professional singers, hired to play and
sing musical compositions to entertain and amuse customers therein, were playing and singing
the above-mentioned compositions without any license or permission from the appellant to play
or sing the same. Accordingly, appellant demanded from the appellee payment of the
necessary license fee for the playing and singing of aforesaid compositions but the demand was
ignored. Hence appellant filed a complaint with the lower court for infringement of copyright
against defendant-appellee for allowing the playing in defendant-appellee's restaurant of said
songs copyrighted in the name of the former. While not denying the playing of said copyrighted
compositions in his establishment, appellee maintains that the mere singing and playing of songs
and popular tunes even if they are copyrighted do not constitute an infringement. The trial court
dismissed the complaint. The CA affirmed.

Issue: Whether or not the singing of the musical compositions in respondent’s restaurant
constitutes public performance for profit within the meaning and contemplation of the
Copyright Law of the Philippines; and assuming that there were indeed public performances for
profit, whether or not appellee can be held liable therefor.

Held: We concede that indeed there were "public performances for profit." It has been held that
"The playing of music in dine and dance establishment which was paid for by the public in
purchases of food and drink constituted "performance for profit" within a Copyright Law." It will
be noted that for the playing and singing the musical compositions involved, the combo was
paid as independent contractors by the appellant. It is therefore obvious that the expenses
entailed thereby are added to the overhead of the restaurant which are either eventually
charged in the price of the food and drinks or to the overall total of additional income
produced by the bigger volume of business which the entertainment was programmed to
attract. Consequently, it is beyond question that the playing and singing of the combo in
defendant-appellee's restaurant constituted performance for profit contemplated by the
Copyright Law.

Nevertheless, appellee cannot be said to have infringed upon the Copyright Law. An
intellectual creation should be copyrighted thirty (30) days after its publication, if made in
Manila, or within the (60) days if made elsewhere, failure of which renders such creation public
property." Indeed, if the general public has made use of the object sought to be copyrighted for
thirty (30) days prior to the copyright application the law deems the object to have been
donated to the public domain and the same can no longer be copyrighted. A careful study of
the records reveals that the song "Dahil Sa Iyo" which was registered on April 20, 1956 became
popular in radios, juke boxes, etc. long before registration hile the song "The Nearness Of You"
registered on January 14, 1955 had become popular twenty five (25) years prior to 1968, (the
year of the hearing) or from 1943) and the songs "Sapagkat Ikaw Ay Akin" and "Sapagkat Kami
Ay Tao Lamang" both registered on July 10, 1966, appear to have been known and sang by the
witnesses as early as 1965 or three years before the hearing in 1968. The testimonies of the
witnesses at the hearing of this case on this subject were unrebutted by the appellant.

Under the circumstances, it is clear that the musical compositions in question had long become
public property, and are therefore beyond the protection of the Copyright Law.