By Luo Yanjie
In recent, the exposure draft of the Copyright Law (the “exposure draft”) has been the hot spots among the public, and many revisions of it have arisen wide argument, among which the most debated parts are the coercive license of the music works in Article 46 and extension management of the copyright collective management organization in Article 60 and 70. On the other hand, it also comes to our attention that rare discussion has been made on the revision concerning the right to the information communication by networks in the exposure draft, which however has been modified a lot. Although such modifications are seems to be a little bit “theoretical”, no one could deny it’s major influence in the future practices. And considering the increasing position of the internet in spreading the copyrighted works, it’s unfair to neglect the revision on the right to the information communication by networks.
Correspondingly, the Supreme People’s Court of China (SPC) issued “the Regulations on Several Issues concerning the Law Application in Hearing the Civil Cases of the Infringement against the Right to the Information Communication by Networks (exposure draft)” (the “new judicial interpretation”) on 20th April of 2012 for the explanation on the application of the right to the information communication by networks again. In this essay, we will share you our understanding on the above exposure draft and the new judicial interpretation.
I. No benefit for producers of sound recording and performers in the extension of the regulation concerning the right to the information communication by networks
In the existing Copyright Law, the definition of the right to the information communication by networks is
“the right to communicate to the public a work, by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them”, which is modified to “
the right to communicate to the public a work in an information network environment, through wire or wireless means, including direct broadcast, relay or making it possible for the public to obtain the work at an individually selected time and place”. The revision includes the adding of two new methods of “direct broadcast” and “relay”, which in our opinion is much positive.
According to the current Copyright Law, the right to the information communication by networks is only applicable to the interactive spreading act, namely the known VOD on the internet which means the user could acquire the works at a selected time, but that may result in the consequence that the laws in effect in China has no way to regulate the direct broadcast, either the transmission of other’s signal or the scheduled broadcast by the website itself, on the internet.
Therefore, with the existing regulations, the copyrighter could only prevent its right against any infringement by direct broadcast with the reference to the “other rights” in Paragraph 17 of Article 10. For instance, in the case EDKO Film Ltd (the “plaintiff”) v.s. Beijing Shiyue Internet Technology Co., Ltd. (the “defendant”) in the copyright dispute, the defendant web-casted the copyrighted film owned by the plaintiff through scheduled ways, which was judged by the court of the infringement against “other rights” in the law instead of the right to the information communication by networks. What’s more satisfying is that the definition of the right has been enlarged with the “direct broadcast” included, and that could make the right prevention of the copyright owner more justifiable.
But the new regulation also comes with a problem, why the rights of the neighboring rights owner (the producers of the sound recording and the performers) are still limited to the “interactive ways” (see Article 32, 35 of the exposure draft) while the right to the information communication by networks has been enlarged in its definition. Consequently, the neighboring right owners have no way to protect their rights under the right to the information communication by networks, and they are even excluded in the owner of the “other rights” by the current regulations. In addition, to interpret in literal way of Article 36
“When audio products are used for transmission through wire or wireless means, or disseminated to the public through technological equipment, performers and sound recording producers jointly enjoy the right to obtain reasonable remuneration”
the information webcasting may be kind of coercive license to the neighboring right owners, and by which it could be illogically that the VOD shall acquire the owner’s prior consent while the direct broadcast does not. For this, we suggest to grant the neighboring right owners a complete right to the information communication by networks and modify the “through wire or wireless means” to “through radio and television networks”.
Other related posts on our website:
1、Introduction to 3rd Revision Draft of China Copyright Law
2、Music Industry’s Revision Suggestion to Drafted Copyright Law, I
3、Music Industry’s Revision Suggestion to Drafted Copyright Law, II
4、Will Copyright Law Modification Break Down Recording Industry?
5、Better or Worse? Comments on the Exposure Draft of Copyright Law
For further information, please contact the lawyer as listed below or through the methods in our CONTACTS.
Bridge IP Law Commentary’s posts, including the comments and opinions contained herein, shall not be construed as the legal advice on any issues related. The contents are for general information purposes only. Anyone willing to quote or refer the posts to any other publications or for any other purposes, no matter there’s benefits gained or not, shall first get the written consent from Bridge IP Law Commentary and used under the discretion of us. As to the application of the reprint permission for any of our posts, please email us to the above addresses. The publication of this post or transmission of it through mail, internet or other methods does not constitute an attorney-client relationship. The views set forth here are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works.