(By You Yunting) Some users of ZHIHU.com (One of the most well-organized community for sharing knowledges online) asked: Would the network host infringe any right while singing at his or her own live-show room? If one host receives the user contributions from the audiences for his or her singing at such live-broadcast room, would such behavior infringe any right? Here come my answers:
The biggest problem of the hosts’ singing at their own live-show rooms is not about whether such behaviors infringe any right or not. Instead, the right holders of such songs have tremendous difficulties in protecting their rights.
The live-show hosts who are singing at their broadcast rooms can receive different kinds of user contributions. Such behaviors can be identified as “charged performances” and thus do not constitute fair use pursuant to the Copyright Law. If the hosts broadcasted songs in their performances without the prior consents of right holders, theoretically such behaviors might constitute infringements, and live-show platforms might be accountable for joint infringement.
However, the problem is that the costs of enforcement against such copyright infringement are extremely high.
- Evidence collection could be difficult due to lack of replay function
The feature of such broadcasted performances is live streaming, and generally there is no function of replay. Thus, if the right holders need to collect evidence, they have to go the Notary Office, recording such performances by computers with two notaries at present. Usually there are few fans during the daytime and thus few live-shows are provided. In most cases, the nighttime and weekends are the prime time. Therefore, in such situations, there shall be three people working overtime for such evidence collection.
The following problem is about the probability. While there are hundreds of hosts broadcasting at such platforms, which one should be chosen as the target of enforcement? Even for the top four big record companies, each of them owns the copyrights of over millions of songs. Thus, even if a right holder had kept on recording the live show of a host for several days, the songs sung by the host during these several days might not include even one piece of music owned by this right holder.
- Low amount of compensations determined by courts
Supposing the attorneys of the right holders and the notaries had kept on working for days, they eventually found one host had sung an infringed song and then made a notarization. Then, they filed a lawsuit at court and the cost for this primary process is around tens of thousands CNY. But what will be the amount of damage that the court might decide?
The answer to this question is that RMB 3,000 for one piece of song will be a quite high amount of compensation. For details on this issue, please refer to the case about public broadcast rights (similar to the live-show here): The First Judgement About Infringement of Background Music Played at Supermarkets. In this case, the supermarket was confirmed to had infringed the rights of the song called “烛光里的妈妈” and shall pay damage in the amount of RMB 1,700 (including reasonable cost).
In some other cases I handled, when the right holder decided to protect their copyrights against music websites, usually there were lots of songs being played or downloaded at one time, and thus through large quantities of litigations the right holder could alleviate the problems of low compensations. However, the feature of live-show is different from traditional music websites. As set forth, it’s quite difficult to find out even one piece of infringed music, how could we apply the large quantities of litigations?
- The copyright collective management is still ineffective in protecting copyrights
In fact, what I discussed above is not a new question, instead this is a problem that the record industry has been struggling for hundreds of years. How do we solve this problem? The westerners created the system called copyright collective management. Record companies established one copyright collective management organization to manage the copyrights for its members in different kinds of fields, such as the background music in places of business, and the copyrights in karaoke. While enforcing the copyrights, since the organization of copyright collective management has right over abundant works, it would be quite efficient when this organization protect the copyrights on behalf of its members.
But in China, the international record companies who possess lots of copyrights are not the members of such copyright collective management organization. Because due to the current laws and regulations, the organization of copyright collective management shall be approved by the National Copyright Administration and shall be organized by government. Meanwhile, the allocation of collected fees by these organizations is always controversial.
If interested, please read the following passage: The Copyright Collective Management Organization Disappointed Musicians. In this article, the specialist pointed out that, “Now in China, the organizations of collective management still have the defects of monopolistic, quasi-administrative system, and the problems in authorizations, fees and allocations, which causing the results that such organizations are always lack of public credibility and recognition.” These record companies wanted to exercise rights of copyright collective management in line with international standards but always failed by the Chinese characteristics. Thus, many large record companies would go through difficulties in enforcing their copyrights by themselves, rather than joining any organization of collective management.
However, this means that, in the industry of live-show, though it is necessary to have the copyright collective management organization to enforce copyrights for its members, but they do not have authorization of enforcing copyrights of works owned by the big record companies.
Therefore, my brief conclusion is that: current laws, system and compensation criterions caused a loophole for enforcement against copyright infringement by the live-show platforms. But how may the copyright holders solve this problem? In China, certain issues are still determined by the governments, and every year the governments will undertake the “Sword Net” campaign against online copyright piracy. If the target of next “Sword Net” campaign is the copyright infringement of live-show websites, such websites or platforms will have to pay loyalty fees to the record companies and organizations of collective management.
Lawyer Contacts
You Yunting：86-21-52134918 youyunting@debund.com/yytbest@gmail.com
Disclaimer of Bridge IP Law Commentary
Short Link: