The latest "Copyright Law (Draft Amendment)" has been reviewed by the Standing Committee of the National People's Congress and is seeking opinions and suggestions from the whole society. The “audiovisual works”, “copyright collective management organizations” and other clauses in the “Copyright Law (Draft Amendment)” (draft for comments) are related to the karaoke industry. In reality, copyright dispute cases in the karaoke industry account for the largest proportion of copyright litigation in China. There are many hot issues worthy of study and discussion, so that we can bring up professional opinions to promote relevant legal amendments, judicial practice and administrative enforcement.
To this end, the China Intellectual Property Law Association held a “Seminar on Hot Issues in Copyright Law Amendment” on July 25, 2020 via Tencent Meeting.Prof. Liu Chuntian, President of the Intellectual Property Law Association of the Chinese Law Society made an opening speech. The seminar invited industry experts and scholars, court judges at different levels, and industry professionals to have in-depth discussion on two topics, i.e.,“the understanding of ‘audiovisual works’ and its use in the karaoke industry" and "technical methods and judicial practice in the era of big data."
Jin Kesheng, vice president of the Intellectual Property Law Research Association of the Chinese Law Society, presided over the discussion on the topic “The understanding of audiovisual works and its application in the karaoke industry.”
In this session, Qin Yuanming, presiding judge of the Intellectual Property Division of the Supreme People's Court; Li Mingde, executive vice President of the Intellectual Property Law Association of the Chinese Law Society and researcher of the Law Institute of the Chinese Academy of Social Sciences; Ma Tie, legal counsel of the China Music Copyright Association; Feng Shanquan, Executive Director of the Anti-Piracy Working Committee for the China Audiovisual and Digital Publishing Association; Yang Xiongwen, Professor of South China University of Technology, and Xiong Wencong, Associate Professor of Minzu University of China, made speeches respectively on “Understanding Article 15 of the Copyright Law from the Spirit of the Civil Code,” “Explaination of the Origin of the Two-in-One Copyright Fees for Karaoke and Related Legal Issues,” “Karaoke Copyright Dilemma in the Era of Big data,” “Understanding of the Legislative Provisions of Audiovisual Works and the Choice of Means to Increase the Interest of Original Authors", and “Analysis of Copyright Infringement on Musical Works by Jukebox.” Li Yufeng, the vice president of the Intellectual Property Law Association of the Chinese Law Society, Zhang Ping, the vice president of the Intellectual Property Law Society of the Chinese Law Society, and a professor at Peking University Law School made speeches and comments.
As the first guest speaker at this seminar, Qin Yuanming talked about his views on the revision of the Copyright Law.He believes that, first of all, the revision of the copyright law must follow the spirit of the Civil Code and take the protection of private rights as the root. Intellectual property rights are private rights. They are parts of the subject matters protected by the Civil Code. IP law should follow the principles and legislative purpose of full-protection of rights, respect for automony of will and freedom of contract established by the Civil Code. At the same time, the revision of the copyright law should be based on solving prominent problems in practice. The problem facing copyright now is the inconsistency of the three different standards. The types of works and rights protected by the Copyright Law are exhaustively listed, which makes it difficult to cover new forms of subject matters and new ways of using copyrighted works. And it makes it difficult for judges to put new technologyinto the pigeon hole designated by the copyright law while they trial cases. Third, we must respond to the development requirements of the Internet and big data era.The Internet and big data era is a new perspective. Everyone can become a producer of audiovisual works. Copyright is endowed with more connotations. Therefore, the revision of the copyright law must respond to this and reflect the development requirements of this era.
Li Mingde proposed that the establishment of a secondary income distribution rights system for music right holders (including authors and management organizations) in the copyright law is an effective way to solve the copyright problem of karaoke.In his personal opinion, the concept of "video product" can be removed and most of the karaoke accompaniment programs currently on the market can be attributed to audiovisual works. However, for the use of these works, we should first consider whether it has been authorized and whether the consideration has been paid.If not, it is an infringement.Even if legally authorized, the right of the music right holders (authors, management organizations) of secondary income distribution should also be considered.
At the same time, it is recommended that legislative proposals be made in this regard, and the legislature should consider it when revising the copyright law.
Ma Tie first introduced the basic situation of the karaoke industry, the production process of the VOD music library, and the origin of the two-in-one fee structure.He made it clear that the Music Copyright Society of China (MCSC) and China Audio Video Copyright Association (CAVCA) only cooperate in the area of traditional karaoke (with private room) and under the model of “per private room per day” fixed charging standard. The “right of performance” and “show right” “two-in-one fee” only exist in such scenario. They never cooperate in the area of Mini-K and other new form of Karaoke, and never cooperate in area regarding “right to reproduce” and “right to distribute through information network.” Later, he expressed his personal views from the perspective of industry collective management organizations.He believes that whether it is an electronic work or a reproduction product, the use of copyright in excess of the license is an infringement and should be liable for infringement. MCSC is a collective management organization for the copyright of musical works, which has the right to protect the rights by initiating a lawsuit.
Feng Shanquan believes that the cause of a large number of lawsuits in the karaoke industry is that the industry does not have a clear copyrighted music library. At the same time, the whole industry has many problems, including but not limited to the problem that the ambiguous status of right holders and liability bearers, the unclear standard that judges follow, damage set by court without clearly calculate the true number of infringment, damage set too high and the black and grey industry of willful copyright litigation. To solve the above problems, one is to refer to the management methods for Internet cafes and other industries to clarify the responsible party; the other is to apply big data technology to accurately determine the number of on-demand tracks and the amount of compensation.
Yang Xiongwen pointed out that the main cause of chaos in the karaoke industry is the balance of interests.To solve this problem, it is necessary to change the previous target thinking model in the management of the karaoke industry, establish a systematic management system, and distinguish the rights and obligations of the various entities in the industry from the standpoint of intellectual property protection.
Xiong Wencong explores the issue of copyright infringement by jukebox, and he believes that MTV used in Karaoke accompaniment is neither cinematographic work nor video product, but musical work. On the issue of compensation, it is recommended to introduce the creditor’s subrogation, joint tort and joint liability system in the civil law to solve the problem that the joint rights holders are slack in exercising their rights.
In his comments, Li Yufeng agreed with the guests’ opinions on the protection of private rights in the Civil Code, the establishment of a system of secondary income distribution rights for music rights holders (including authors and management organizations), and the removal of “video products”.At the same time, he proposed that under the premise of adhering to copyright legalism, the types of copyright property rights should be flexibly understood.When the Copyright Law is amended, a "right of communication to the public" can be added to resolve the issue of the distinction between audiovisual works and video products.At the same time, the relevant provisions on the protection of foreign-related copyrights should also be supplemented.
Zhang Ping said in the comment that, based on the speeches of the six guests, although everyone has different views on works and products, they have the same understanding of copyright and everyone agrees that commercial use of copyright must be paid.She also agreed with the guests that the protection of intellectual property rights should follow the spirit of the Civil Code on autonomy of will and freedom of contract. Both parties can use contracts to agree on rights and obligations without an obvious violation of the law.
Professor Guo He, Vice President of the Intellectual Property Law Association of the Chinese Law Society and Vice Dean of the School of Intellectual Property of Renmin University of China, chaired the speech and discussion on the topic “Technical Measures and Judicial Practice in the Era of Big Data.”
In this session, Xie Zhenke, Deputy Chief of the Intellectual Property Division of Beijing Higher People’s Court, Wang Yifei, Deputy Chief of the Intellectual Property Division of Zhejiang Higher People’s Court, Deng Danyun, Chief of the Second Division of the Comprehensive Trial of the Guangzhou Internet Courtand Member of the Adjudication Committee, Zhang Xuejun, consultant of Beijing King & Wood law firm, and Xiao Zhaohui, the chairman of the Changsha Culture and Entertainment Performing Arts Industry Association, respectively discussed on the following topics: “The Change of Judicial Practice on Karaoke Copyright Case,” “Resolving Difficult Issues in Trial of KTV Copyright Infringement Cases,” “How Judicial Practice Provides Good Guidances to Karaoke Copyright Chaos in the Era of Big Data,” “Thinking about the Balance of Interests in the Trial of Karaoke Copyright Cases,” and “Copyright Chaos: A Burden Hard to Bear with for the Karaoke Industry." Song Jian, a senior judge of the Jiangsu Higher People's Court, and Yin Wei, the president of the Wuhan Intellectual Property Tribunal, commented on the above speeches.
Xie Zhenke, Wang Yifei, and Deng Danyun introduced the karaoke copyright cases in their respective courts.In response to the substantial increase in the number of cases, courts at all levels are adhering to the basic principle of protecting intellectual property rights, adapting to the continuous development of society and seeking effective means to promote the development of the industry.
Xie Zhenke believes that courts are the enforcers of the law and must implement the provisions of the existing law in trial practice. Under the basic principles of protecting the legal rights of right holders, promoting the healthy development of industry collective organizations, and promoting social harmony and progress, in the trial of copyright cases, the courts should adhere to the principle of fault liability and the principle of statutory compensation.Specific to the trial of karaoke copyright cases, due to the establishment and development of industry collective management organizations, the intervention of new technological means and other factors, it raise more questions for the court to try such cases, and it is necessary to for judges to judge more specific questions, including who are the right holders, who are the liability bearers, and how to distribute rights effectively. It is recommended that when the Copyright Law is amended, the provisions of Article 15 should be adjusted accordingly to unify “works” and “products” to “audiovisual works”, and no longer retain the provisions of video products.
Wang Yifei proposed that the collective management organization system is the best rule for solving large-scale authorization, reducing authorization costs, and expanding the dissemination of copyrighted works.This system cannot be denied because of some defects or imperfections in the development process of the collective management organization, and the healthy development of the copyright collective management system must be promoted.At the same time, when reviewing the copyright of karaoke, judges can refer to the amount of charge and use big data to accurately calculate the damage compensation.
Deng Danyun proposed that all interests should be fully considered on the premise of respecting the protection of intellectual property rights. In trial, for a large number of Karaoke copyright cases, on the one hand, judge should talk to collective management organizations to try to mediate the cases and resolve litigations; at the same time, the verification of rights need to be strictly enforced, and the burden of proof was required for cases without unclear ownership. She also mentioned that the court is facing great confusion regarding the amount of compensation. No matter what kind of compensation the court makes, it is difficult to achieve the desired social effect. This problem needs to be resolved urgently.In addition, with regard to the distinction between works and products, it is difficult for the parties or the court to reach a consensus in the trial. It is hoped that the above-mentioned problems can be resolved through the revision of the copyright law.
Zhang Xuejun introduced the origin of the regulations on “work” and “product” and the function of distinguishing the two.At the same time, she believes that the copyright issue of karaoke should eventually be resolved in the scope of civil law.Regarding the issue of fees and awards, it is recommended that the Karaoke Industry Management Association use big data to build a database of matching transactions and share it with the industry and judicial authorities to solve the problem of different standards and awards.
Xiao Zhaohui talked about his views on the status of the entire industry from the perspective of practitioners in the karaoke industry.First, as a practitioner, he recognized the rule that the use of copyright must be paid.But he put forward his own views on the payment standard and the calculation method of the cost.Industry regulators should formulate reasonable charging standards, and use big data technology to accurately calculate the frequency and amount of copyright use, so as to achieve clear and reasonable charges, avoid conflicts, and reduce the occurrence of a large number of litigation cases.
Song Jian commented on the speeches of the above-mentioned guests.First of all, the second paragraph of Article 8 of the Third Amendment to the Copyright Law introduces a negotiation and benefit mechanism for the fee rates of copyright collective management organizations, which is a very good legislative orientation.The effective use of this mechanism can facilitate the coordination and balance of interests of all parties.At the same time, she agreed with the proposal to set up pre-procedures for administrative rulings.In this way, the multi-party coordination role of administrative agencies, right holders, collective management organizations and related interest users can be brought into play, and the number of judicial cases can be effectively reduced.Third, on the issue of fees, we can learn from the single-window fee system in Taiwan and the complete market system of Germany, Japan, and the United States.A principle adhered to by this system is that no matter whether it is managed in the name of an individual or in the name of another person, permission must be obtained.The future reform is definitely a systematic project, and the mature and successful experience of developed countries should be absorbed in the collective management of copyright to solve the fundamental problem of rights protection and balance of interests in the karaoke industry.
Yin Wei recognized Song Jian’s comments and tended to remove the relevant regulations on “products” after classifying cinematographic and other works as audiovisual works.In addition, he suggested that the relationship between collective management organizations should be coordinated to form a joint force and promote the development of the industry.
At the end of the conference, President Liu Chuntian made a summary speech from four aspects: the significance of the promulgation of the Civil Code, the relationship between the Intellectual Property Law and the Civil Code, the principles of the revision of the copyright law, and the path to the resolution of copyright issues in the karaoke industry.
He said that the symbol of a normal country and a normal society is the protection of private rights.The promulgation of the Civil Code is a sign that China has truly entered a society under the rule of law, and it is also a sign of entering a normal country and a normal society.The promulgation of the Civil Code gave us a systematic concept of civil rights and civil law as a whole. It makes our way of life, including the legal consciousness and way of thinking of our society and the public, have a qualitative leap.The value of the Civil Code in changing people’s ideas, raising people’s spiritual height, and enhancing people’s awareness of rights protection is far greater than the value of the specific use of the Civil Code.Although the intellectual property law is not included in the code, it does not mean that the intellectual property law is outside the civil code.
On the contrary, the individual laws of intellectual property are already an integral part of the civil code, and the spirit of intellectual property law is dissolved in the civil code.
The revision of the copyright law should proceed from a systematic thinking, give more consideration to the civil code, and adhere to the principles of private rights protection and autonomy of will.
Regarding the discussion of audio-visual works, President Liu Chuntian believes that audio-visual works incorporate too many issues in the copyright law, and also integrate all aspects of complex economic and social relations, plus technology dominates them, as well as consideration of economic interests, and the establishment of collective management organizations. It is a place where the most problems accumulate, and it is also the place where the power of the legal system needs attention.
Regarding the copyright issue of karaoke, he agreed with the proposal made by a guest to no longer distinguish between “works” and “products”. For disseminators who do not create, they should not be protected by copyright law. He agreed with Song Jian’s suggestion to learn from the single window fee system in Taiwan.From a practical point of view, a large number of litigation disputes reflect the complexity of the industry, that is, problems such as multiple stakeholders, lack of management mechanisms, and inconsistent litigation rules, etc. These problems are all exposed.Therefore, in order to solve the copyright problem of the karaoke industry, one needs to learn and draw lessons from relevant experiences in developed countries and Taiwan, and at the same time, we must go deep into the industry, carry out in-depth investigations and studies, and understand all parties while adhering to the principle of private rights protection. We should make full use of the current big data and other advanced technologies to establish a complete and systematic system to achieve the overall goal of settling disputes and protecting the healthy development of the industry.
After the meeting, Intellectual Property Law Association will summarize the opinions and suggestions of the speakers, and organize a "special research" to form a research report and a draft of the copyright law revision proposal, which will be submitted to the relevant authorities for reference.
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