Copyright Issues in Using Instrumental Music on Philippine Podcasts (A comprehensive legal-practitioner overview)

1. Abstract

Podcasting has exploded in the Philippines, but many creators remain unsure how to lawfully incorporate instrumental music. This article surveys every relevant provision of Philippine copyright law, the interplay with collective management organizations (CMOs), practical licensing pathways, available exceptions (including fair use), enforcement risks, and compliance checklists—giving podcasters, lawyers, and rights-holders a single, self-contained reference.

2. Governing Sources of Law

Instrument	Key Sections for Music/Podcast Use
Republic Act (RA) 8293 – Intellectual Property Code of the Philippines (IPC)	§§172 (musical works), 177–180 (economic rights), 193–198 (moral rights), 202–216 (related rights, sound recordings), 183–184 (fair use & other limitations)
RA 10372 – 2013 Amendments to RA 8293	Adds §§216.1–216.3 on takedown and notice procedures; aligns with WIPO Internet Treaties
WCT & WPPT (effective in PH since 2002)	Underpin “communication to the public” right for streaming
Civil Code & Revised Penal Code	Subsidiary civil liability and criminal sanctions for copyright infringement
2023 IP Code Implementing Rules & Regulations (latest IRR)	Clarifies online service provider safe-harbor duties
CMO Regulations (IPOPHL Office Circular 2015-044 & 2021-001)	CMO accreditation, tariff review, and dispute resolution

3. Copyright Building Blocks

Separate Layers of Rights
- Musical composition (melody & arrangement) → owned by the composer/ publisher.
- Sound recording (“master”) → owned by record producer/performer.
- An instrumental backing track still embodies both layers.
Term of Protection
- Composition: life of composer + 50 years (IPC §213).
- Sound recording: 50 years from first publication (§215). After expiry the work enters the public domain.

Economic Rights Implicated in a Podcast

Right	Trigger in a typical podcast
Reproduction (§177.a)	Downloadable podcast file
Distribution (§177.b)	RSS delivery/hosting
Public performance / Communication to the public (§177.c, §203)	On-demand streaming
Adaptation / Arrangement (§177.d)	Editing or looping track, adding voice-over
Rental (§177.e)	Subscription models (argued but seldom litigated)

Moral Rights (§193)
- Attribution of composer and performer.
- Integrity—no distortion prejudicial to honor or reputation (edit fades, speed-ups must respect this).

4. Collective Management Landscape

CMO	Represented Rights	Typical Podcast Tariff (indicative)*
FILSCAP (Filipino Society of Composers, Authors & Publishers)	Performing right in the composition	₱ 3,000 – ₱ 10,000 annual blanket for independent podcasts
PPR (Philippine Phonogram Producers Inc.)	Public performance right in the sound recording	Usually bundled with FILSCAP or negotiated ad hoc
PRSP (Philippine Recording Industry Music Licensing Services)	Mechanical reproduction in the sound recording; sync for AV	₱ 1,500 – ₱ 5,000 per track for small-audience use

*Exact tariffs vary; IPOPHL reviews CMO rate cards every three years.

5. Licensing Pathways for Instrumental Tracks

Commercial Catalogue Track
- Step 1: Secure public performance/communication license from FILSCAP (composition) and PPR (sound recording).
- Step 2: If you will edit or loop beyond time-shifting/volume-ducking, request a derivative work authorization (IPC §177.d).
- Step 3: Retain proof (license invoice, e-mail approval) to qualify for safe-harbor defenses.
Cover or Re-recorded Instrumental
- Mechanical license from the composer/publisher (handled by FILSCAP or direct) to make the new recording.
- You own the new master but still owe composer royalties on each download/stream.
Royalty-Free / Production Library Music
- Verify the library’s Philippine territorial grant; many “royalty-free” deals exclude collective performance fees.
- Keep a copy of the library licence with unaltered terms.
Public-Domain Works
- Confirm both layers are out of copyright. Example: José Estella (d. 1942) compositions entered Philippine public domain in 1993.
- Newer recordings of PD compositions still have sound-recording rights.
Creative Commons & Open Licenses
- Check licence version & clauses: BY (attribution) and SA (share-alike) are compatible with commercial podcasts; NC forbids monetization.
- Provide proper attribution in show notes; retain a local copy of the licence text.

6. Exceptions & Limitations

Exception	Relevance to Podcasts	Caveats
Fair Use (§185)	Possible for short illustrative excerpts, commentary on music, or news reporting	4-factor test: purpose (education/criticism), nature, amount, market effect. Use of a full track typically fails factor 4.
Ephemeral Recording (§187)	Broadcasters may make temporary copies for transmission	Not available to independent podcasters unless registered as broadcast service
Private Performance (§184.e)	Playing music privately (e.g., rehearsal)	Podcast distribution ≠ private
Face-to-face Teaching (§184.a)	Classroom podcast behind VLE might qualify	Must be strictly educational & limited access

7. Liability & Enforcement

Mode	Remedies	Notes
Civil Action (§216)	Injunction, actual damages, moral & exemplary damages, statutory damages (₱ 50,000 – ₱ 1,000,000)	Jurisdiction: RTC special IP courts
Criminal Prosecution (§217)	Fine ₱ 50,000 to ₱ 1,500,000 and/or 1-9 years imprisonment	Requires willful infringement
Notice-and-Takedown (RA 10372)	ISP must remove infringing podcast within specified period or risk secondary liability	IPOPHL’s takedown guidelines mirror DMCA but have stricter affidavit requirements
CMO Arbitration	Compulsory for tariff disputes under IPOPHL Mediation Center	60-day resolution timeline

8. Practical Compliance Checklist for Podcasters

Catalogue every track used (title, composer, ISRC/ISWC, duration).
Identify required licences (performance, mechanical, master, sync/adaptation).
Contact CMOs 4–6 weeks before launch; negotiate annual blanket where feasible.
Document fair-use analyses for clips <30 data-preserve-html-node="true" sec used in commentary.
Embed credits in show notes & episode metadata.
Retain licences in a rights-management folder (cloud + offline backup).
Review renewals each January; verify tariff changes published in the IPOPHL Gazette.
Educate co-hosts & editors on “no-surprise music” policy during post-production.
Monitor listener feedback; respond promptly to infringement claims.
Consult counsel before using crowd-sourced or AI-generated tracks (possible latent infringement).

9. Emerging Issues to Watch

Issue	Why It Matters
AI-Generated Instrumentals	Still require clearance if dataset contained copyrighted works; IPOPHL’s AI task-force draft rules (expected late 2025) may impose new transparency duties.
Multi-Territory Distribution	Spotify & Apple Podcasts push PH shows worldwide → need extra licences in major territories or rely on platform-level blanket deals (not universal).
Interactive Live-Stream Podcasts	“Communication to the public” overlaps with interactive streaming; separate reportorial tariff proposals pending before FILSCAP (2024-002).
Revenue-Sharing Models	Possible CMO-platform direct deals could simplify licensing for small producers—watch IPOPHL consultations.

10. Conclusion

Using instrumental music lawfully in a Philippine podcast hinges on understanding dual layers of rights, securing both composition and master licences, and navigating the accredited CMO system. While fair use offers narrow breathing space, most full-length background or intro music will require clearance. The regulatory environment is maturing—especially with RA 10372’s online enforcement regime and forthcoming AI guidelines—so podcasters should adopt a proactive rights-management workflow and review licences annually. When in doubt, seek specialist counsel; penalties for infringement are significant, but compliance is entirely achievable with informed planning.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For case-specific guidance, consult a lawyer admitted to the Philippine Bar.