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

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.

I. Article 16

Article 16 of the Draft: Unless otherwise proved by the written documents, the manufacturer of the audio and video works shall have the copyright while the writer, director, cameraman, lyric and tune author shall enjoy the right of authorship. The manufacturer shall get the license from the author for the using of drama and music works in the manufacturing of audio and video works, also the royalty fee is demanded.

Suggestion for modification: Unless otherwise proved by the written documents, the manufacturer of the audio and video works shall have the copyright while the writer, director, cameraman, lyric and tune author shall enjoy the right of authorship. The manufacturer shall get the license from the copyright owner for the using of drama and music works in the manufacturing of audio and video works, also the royalty fee is demanded.

II. Article 46

Article 46 of the Draft: Any recording product may be exploited into a new sound recording by other manufacturers by Article 48 of the law within 3 months after its first publication without the permission of the copyrighter.

(Paragraph 3 of Article 40 of existing Copyright Law: A producer of sound recordings who exploits a music work another person has duly made into a sound recording to produce sound recordings, may not obtain permission from, but shall pay remuneration to the copyright owner as prescribed by regulat1ons, such Work shall not be exploited where the copyright owner has declared that such exploitation is not permitted. )

Suggestion to modification: Any recording product may be exploited into a new sound recording by other manufacturers by Article 48 of the law within 3 months after its first publication unless the copyright owner has declared that such exploitation is not permitted.

III. Article 48

Article 48 of the Draft: Any use of the publicized works without the permission from the copyrighter by Article 44, 45, 46 and 47 shall conform to the following conditions:

……

(3) To pay the royalty fee to the copyright collective management organization by the standard drafted by the copyright administration of the State Council within 1 month after the exploitation, meanwhile to report the name, author name and origin of the exploited works.

Article 73 of the Draft: Anyone who commits any of the following acts of infringement which also damages the order of socialist economy shall be subjected by a copyright administration department to such administrative penalties as ceasing the infringing act, confiscating unlawful income from the act, confiscating and destroying infringing reproductions and imposing a fine; where the circumstances are serious, the copyright administration department may also confiscate the materials, tools, and equipment mainly used for making the infringing reproductions; and if the act constitutes a crime, the infringer shall be prosecuted for his criminal liability:

……

(2) the exploitation of others’ works against Article 48 of the law.

Suggestion to modification: Before the exploitation of the works, the tended user shall check the information of the copyright owner wither in his own way or  through the query system provided by the copyright collective management organization, and pay the royalty fee to the copyright owner by the standard set by the copyright administration. Once there’s no information concern the copyright owner, the exploiting party shall pay such royalty to the collective management organization and submit the name, author name and origin of the works at the same time.

IV. Article 56

Article 56 of the Draft: The licensee shall not otherwise license or transfer the copyright without the permission from the copyright owner when no such right to license and transfer is clearly agreed in the contract.

Without the agreement of the copyright owner, the licensee shall not license any third party to exercise the same right.

Suggestion to modification: The licensee shall not otherwise license or transfer the copyright without the permission from the copyright owner and the licensee when no such right to license and transfer is clearly agreed in the contract.

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  6. How to combat knockoff games in China?
  7. How to protect open source software in China?
  8. How to make the copyright registration in China?
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  10. How to protect personal privacy aginst the invasion of malicious apps?

Editor: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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