China’s Courts Found Non-Infringement for Unauthorized Remake of Song

(By Luo Yanjie) Abstract: The scope of the statutory license includes the manufacturing of the audio recording, and also includes the distribution of the work afterwards. Judging from the latest case, the written statement of the right holder must explicitly exclude the application of statutory license, and cannot simply exclude it by claiming “chasing any infringement.”

The statutory license provided in the Copyright Law is to prevent a monopoly in the music market, but the law also regulates that the right holder has the right to exclude that license. ” However as to what kind statement shall be made within such exclusion statement, we have found no such regulation in law. According to the case described in this essay, the recording industry tends to use the term “copyright reserved, and infringement chased”, which in fact is not within the scope of the license due to the followings:

Case Summary:

In April of 2012, Mao Ning reproduced the noted song “Legend”, and made it into an album for sale. The copyright holder of the song, LSUN MUSIC, believed that since the remake by Mao was not licensed by LSUN MUSIC, it filed a lawsuit in court again Mao. On the other hand, to the understanding of Mao and his recording company, Mao’s remake shall be deemed as the statutory license in the Copyright Law, and he has also paid fees to Music Copyright Society of China (the “MCSC”). Therefore, the remake shall not constitute as infringement.

After the hearing in the court, Beijing Chaoyang People’s Court (the “Chaoyang Court”) thought that the statement of “copyright reserved and infringement chased” shall not be sufficient enough to exclude the statutory license. And for this reason, the remake of the song by the defendant shall not be considered as infringement. Dissatisfied of the decision, the right holder appealed, and the case is currently ongoing in the higher court.

Lawyer Comment:

The case is one not commonly seen in regards to the dispute involving the statutory license, and most of its aspects deserve to be analyzed. The author would like to share the analysis as follows:

The scope of the statutory license

Paragraph 3 of Article 39 in the Copyright Law regulates the statutory license for the audio recording, which states:

“In using a music work lawfully fixed by another as the sound recording work for making a sound recording product, the sound recording producer may be allowed to acquire no license from the copyright owner, however, he shall pay compensation according to the regulations; if the copyright owner has declared that the use of his work is not allowed, the work may not be used.”

The specific intension of this article is when a piece of the song is publicized, others may use that piece of music to create new works. But it shall be noted that the statutory license only includes the “music work” instead of “recordings.”  As to use of publicized recordings, authorization from the manufacturer is required, and it is not within the scope of the statutory license.

Furthermore, the article of the statutory license only includes “manufacturing,” but no matter the academic circle or in the judicial practice, both regard the statutory license to include the follow-up use, like publication, and network distribution. Because if distribution is not included within the manufacturing definition, then it is unnecessary to have the license. In the case, the defendant simply referred to that system for the exemption of the infringement liability.

  1. Could the “copyright reserved and infringement chased” be proper statement excluding the application of statutory license?

According to the views of the first instance court, the so-called “infringement chased” statement directly refers to the reproduction and not the remaking of the music. But the right holder apparently takes that to mean the infringement chased herein shall refers to the remaking, and a similar statement is adequate to exclude the using by others as preferred by the right holder. To the understanding of the author, to take the infringement chase as the exclusion statement could meet the intension of the right holder, but that vague statement is not sufficient for the distribution of the song involved. Now the right owner has appealed to the higher court, and we are looking forward to the final decision from the second instance court.

The other aspect that deserves your attention is that at the beginning of 2012, when the Copyright Law is under its revision for the third draft, the law makers deleted the statement to exclude article, which had arisen the dissatisfaction of musicians, and at the end we have seen the restoration of the original clauses. If once by the interpretation of the first instance court, the originally used infringement chased shall not be the statement to exclusion, then the musicians shall not need to become dissatisfied again. After all, they have not made any statement to exclude the using by others under the statutory license.

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You Yunting86-21-52134918

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