(By Luo Yanjie) Previously, we introduced how to determine the copyright holder of cinematographic works, and today we would like to continue by introducing how to determine copyright ownership of musical works. Similar to cinematographic works, we have confronted situations in infringement cases in which it is difficult to determine the copyright holder of musical work. For example, in one case the copyright conducted in mainland China was licensed by an overseas rights holder, but the name in the signed and issued license was different from what was written on the original CD. Although the issue might have come from a mistake in the translation, it still created a real obstacle for the rights holder. Now, let’s take a look on the way to determine the copyright holder of musical work in China.

I. Who are the copyright holders of musical work?

While not as complicated as the unclear ownership of cinematographic work, the difficult point musical copyrights is that there are many rights holders and the rights enjoyed by each kind of rights holder is different. The Copyright Law of China provides for the following rights holders and neighboring rights holders:

1. The author of the lyrics or music is the copyright holder

According to the Implementing Rules of the Copyright Law, “Musical work shall refer to works that can be sung or played, either with or without lyrics, like songs, symphonies, and etc.” Aside from some classic music, most familiar musical works have lyrics. As is well known, the Copyright Law protects “fruits of intellectual labor,” but the performer (singer) and the producer (record maker) create no musical work during the performance or recording. Therefore, they are not copyright holders but do enjoy neighboring rights. For this reason, the author(s) of lyrics or music of the musical work are the only copyright holder(s) of the musical work.

2. The recording producer enjoys production rights over what he has recorded

As discussed above, the producers are not the copyright holders of the musical work, but they have contributed their effort to the publication and broadcast of the musical work. For this reason, as provided in the Copyright Law, the producer shall enjoy production rights (a neighboring right), but his rights are limited to the specific versions of the musical work he has recorded and shall not involve other versions recorded for the same music work.

3. The performer enjoys the performer’s rights to what they have performed

Just like the producers, the performers also enjoy performer’s rights, and, in the same way, such rights are limited to the version they have performed, and do not extend to versions of the same work performed by others.

II. Difficulties in copyright determination

As discussed above, there may be several rights holders of one musical work (not limited to the copyright holder). In the specific cases, determining ownership of the various rights generally has the following disputes and difficulties:

1. The author is not the rights holder

As stipulated in the Copyright Law, “The citizen, legal entity, or other organization whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work.” Despite the fact that published CDs all contain the name of the author of lyrics or music, as is a special feature of the music industry, the rights of the author of lyrics or music has generally already been transferred to the music company by then. Therefore, in general situations, the right holder of the musical work is not the copyright holder.

2. Chaotic marks on musical works

The music company will generally mark itself as the right holder on the record. But, until now there has been no law or regulation on which mark to use to indicate the specific rights holder. The most popular mark method is to use “C” to indicate the copyright holder and “P” to indicate for the production rights holder. But, in China, there are methods of marking, like “copyright provided” (版权提供), and it might even be marked with nothing but the name, which makes determining copyright very difficult.

3. Various copyright holders for various versions of a musical work

Due to the non-simultaneous publication of the music around the world, the version of a musical work publicized in one nation may be slightly different from the one released in another country. At this time, if the producer claims the production rights, it is very difficult or requires great exhaustion of energy to prove which edition was infringed and which edition the producer has rights over.

III. Determination methods in practice

Despite the difficulties, how does court to determine the right holder in practice? The main methods are as follows:

1. Subject to the mark printed on the cover of the record

In judicial practice, most music companies only need to provide the record with their name on it when protecting their rights. Unless there is no mark or means to clearly express that this company is the rights holder, it is only necessary to have “©” or “all rights reserved” for the court to acknowledge the music company’s rights, and there will be no demands for the music company to show the author’s copyright transfer or license document.

2. Comprehensive examination depends on whether the infringer raises an objection

In the previous cases we have handled, once preliminary evidence is provided, most courts tend to support the plaintiff’s claim. When the defendant raises an objection by seizing on deficiencies in the defendant’s rights, however, the court will examine the right of the plaintiff.

3. Tendency to take the company as the right holder

When arguing whether the author or the music company owns the copyright, unless explicitly demonstrated, the court tends determine that the music company enjoys the rights. For example, in the case of He Yong vs. SINA, although the court decided that He Yong was the author, the packaging of the record had another company name. So, the court believed that it could not determine copyright ownership over the lyrics and music based on the evidence because otherwise it could harm the legal rights of the other music company.

As to other methods of determination, they bear no difference with the methods for deciding copyright ownership for cinematographic work introduced previously, which comprehensively judge the right ownership based on current evidences. Also, they share the same principle: to not make rights protection burdensome for the rights holder, nor to lead to abuse of the right by the copyright holder.

Lawyer Contacts

You Yunting：86-21-52134918  youyunting@debund.com/yytbest@gmail.com

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