By You Yunting

A question raised up for me on Weibo stating: should all the singing performances by the participants in talent shows be licensed by the copyright holder? And who shall take the infringement liability once it is accused by the right holder? Behind the question, the most heated news related to the topic is that Universal sent a lawyer’s letter to Li Daimo, the participant of The Voice of China, accusing his unlicensed performance of “You Exist in My Song”, the works of Universal’s singer. Also in the letter, the company demands the ceasing of the performance of the song, by both the participant and The Voice. The seemingly short question actually has many legal issues in it, and the following is my answer to them.

Q1: Statutory license for the copyrighted works performance on talent shows?

By some news reports (Note: the link is in Chinese), the copyright works could be covered in the shows once the remuneration is paid afterwards, and the main legal basis of their conclusion is Article 42 of Chinese Copyright Law,

“In broadcasting a published work of another, the radio or television station may be allowed to acquire no license from the copyright owner; however, it shall pay compensation thereto.”

Hence, in the singing shows, all the participants (singers) shall pay the compensation to the copyright holders of the songs used.

However, in my opinion, the above understanding of law is incorrect; the said article is mainly on the right of distribution, referring to the published video & sound recording or film, which could be broadcasted by radio or television station with no prior consent but compensation paid afterwards. Yet, the nature of covering is the performance of the songs, and that shall be regulated by the performance right in Article 37 of the Chinese Copyright Law that:

“In using a work of another for performance, the performer shall acquire the license of the copyright owner and pay compensation thereto. In organizing a performance, the organizer shall acquire the license of the copyright owner and pay compensation thereto.”

With the above analysis, the answer to the question on Weibo is: to cover other’s work is to perform the work in essence, and that shall require the license from the lyricist and the tune writer; as to the sponsor, they shall take the copyright liability for any infringement as the organizer.

Q2: What is the copyright solution to covering songs on TV?

It might follow another question that is: what is the lyrics and tunes copyright solution to the existing shows? The answer is copyright collective management system. The system was established to meet the mass demands of license on some copyrights from each single holder, and that is mainly based on Copyright Collective Management Regulation issued by the State Council in 2004.

The song covering in TV shows involves the performance right of lyrics and tunes, which is under the license of the Music Copyright Society of China (MCSC). By the articles of associations of MCSC, the license by the association is mainly for the open performance of music pieces. Therefore, the television state is entitled to use the works of MSCS after the license from it.

Q3: Could TV station use the works of those holders not in the MCSC?

We have seen the reply from The Voice production company that all the songs used in the program are of the compensation to MCSC. Clearly, they believe any songs covered could be legal after the compensation to the collective management organization is made. But according to the news report, the creator of the song, Ms Qu Wanting has made no license over the work to MCSC, then is the reply of The Voice still sound and solid?

For the management of the association on the works with no license from the creator, the “extended management” could be applied. With such extension, the association may have the right to manage the unlicensed works. In the regulations of the 1^st exposure draft of the new Chinese Copyright Law, the State Copyright Office of China amended the articles on extended management, which was met by strong opposition from the music industry; the regulation was removed in the 2^nd draft. And back to the existing laws, no such extended management is available as regulated, so from this aspect The Voice of China shall have no right to cover Qu’s “You Exist in My Song”.

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