Music Industry’s Revision Suggestion to Drafted Copyright Law, II

The exposure draft of revised Copyright Law (the “Draft”) has gained wide attention among the public after its publication on the website of the National Copyright Association of China (NCAC). One of the reasons contributing to the heated discussion is the articles possibly damaging the interests of musicians who have expressed their strong opposition to the Draft.

In recent, the Record Committee of China Audio & Video Association (CAVA) affiliated to General Administration of Press and Publication of PRC has made their suggestions to the modification on the Draft. To the introduction on the website of CAVA, it has more than 520 member units that are engaged in audio-video production, duplication, distribution and marketing. The member units have not only the largest state record corporation, audio-video press, but also the best music-make corporation, distribution and marketing corporation and the large chain marketing corporation at home. Under CAVA there are several working committees such as distribution, record, disc, educative publishing, digital audio-video and china marketing committee. And the Record Committee making the suggestion this time is the working committee of the CAVA.

The following is the digest of the Record Committee’s suggestion, and we have made edit on it for your convenience in reading.

V. Article 59

Article 59 of the Draft: The copyright collective management organization is the non-profit organization exercising the copyright or related right through collective management method under the copyrighter or other right owner’s license or the legal regulation.

When exercising the right, the copyright collective management organization may claim the right in its own name for the copyright owner or the right owner related, and could also participate in the lawsuit or arbitration of copyright or the right related as one party.

The copyright administration department of the State Council takes in charge of the approval and supervision on the copyright collective management organization.

Suggestion to modification: The copyright collective management organization is the non-profit organization exercising the copyright or related right through collective management method under the copyrighter or other right owner’s license or the legal regulation.

When exercising the right, the copyright collective management organization may claim the right in its own name for the copyright owner or the right owner related, and could also participate in the lawsuit or arbitration of copyright or the right related as one party.

The copyright administration department of the State Council takes in charge of the approval and supervision on the copyright collective management organization, and the collective management organization set in each industry shall not be less than 3.

VI. Article 60

Article 60: When exercising the right nationwide as the representative and on the license of the right owner, the copyright collective management organization may apply to the copyright administration of the State Council for the representation of all the copyright owner to exercise the copyright or the right related, unless the right owner declare not subject to the collective management in written.

Suggestion to modification: to delete the article completely.

VII. Article 69

Article 69 of the Draft: The internet service provider (ISP) shall not take the obligation of information examination related to the copyright or its concerned right when providing client the service of storage, search, link or other pure internet technology service.

When the internet client conducts infringement against the copyright or any conduct related through the internet service, the infringed party may notice the ISP in written to demand the deletion, shield, disconnection or any other necessary measures. The ISP shall take any necessary measures in time after the notice and thereby shall take no liability; otherwise the ISP shall take the joint liability with the infringing client.

When the ISP is aware or shall be aware of the infringement by the internet client through internet, and takes no measures afterwards, it shall take the joint liability with the internet client.

Suggestions to modification: The internet service provider (ISP) shall not take any examination obligation on the information related to the copyright or rights concerned when providing the service of storage, search, link or other pure internet technology service.

When the internet client conducts infringement against the copyright or any conduct related through the internet service, the infringed party may notice the ISP in written to demand the deletion, shield, disconnection or any other necessary measures. The ISP shall take any necessary measures within 48 hours after the notice and thereby shall take no liability; otherwise when the ISP takes no measures within the hours it shall take the joint liability with the infringing client.

When the ISP is aware or shall be aware of the infringement by the internet client through internet, and takes no measures afterwards, it shall take the joint liability with the internet client. And the declaration by the copyright owner of the copyright status shall lead to the “should aware” of the ISP.

VIII. Article 70

Article 70 of the Draft: When the exploiting user signs the contract with the collective management organization and pays the royalty thereby, it shall not take any liability for the lawsuit filed by the right owner for the same right or exploitation method, while the exploitation ceasing and royalty payment equivalent to that paid to the organization is demanded.

Suggestions to modification: to delete the article completely.

Law Group of Record Committee

2012.4.10

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Editor: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
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