The impact of the newly revised Copyright Law on the music industry - Part One - Lexology
The third revision of the Copyright Law was passed on 11 November 2020 and came into force on 1 June 2021. The revision of the Copyright Law after years of hard legislative work has finally achieved positive results. As an intellectual property lawyer engaged in the practice of the Copyright Law in the music industry for more than 20 years, the author has been paying close attention to the progress of revision of the law, and analyses here and expects the impact of the new law on China’s music industry.
The new law expands the broadcasting rights and brings the acts of live webcasting, regular broadcasting on websites and real-time broadcasting under the protection of broadcasting rights. The “broadcasting rights” in the old law only include three kinds of acts: wireless broadcasting, rebroadcasting the wireless broadcasting by wire or wirelessly, and publicly broadcasting the received broadcast. If the initial dissemination is by wire, such as wire broadcasting and network broadcasting, it cannot be included in the scope of broadcasting rights. The new law adds the technical means of “wired” communication on the original basis (Article 9.11). Since then, the revised broadcasting rights have covered all the “non-interactive communication” acts, including the non-interactive communication involving the network, and have achieved a seamless connection with the information network communication right characterised by “interactive communication”.
In the past judicial practice, it is necessary to apply the Miscellaneous Provision of “other rights that shall be enjoyed by copyright owners” to regulate the music transmitted by wire and in a non-interactive way. After the implementation of the new law, the acts of live singing or playing background music by anchors, regular broadcasting on websites, and real-time broadcasting of concerts and TV variety shows are all included in the protection scope of broadcasting rights.
If there is no stipulation or unclear stipulation, the right holder of music works shall enjoy the right to remuneration for the subsequent dissemination of other audio-visual works such as short videos, game screens, variety shows and music videos (MV). The new law introduces the concept of “audio-visual works” and changes “movies and works created in a similar way to making movies” into “movie works, TV series works and other audio-visual works”. At the same time, it adds new provisions: the copyright ownership of audio-visual works other than movies and TV series shall be stipulated by the parties concerned; if there is no stipulation or the stipulation is unclear, the ownership shall be enjoyed by the producer, but the author shall enjoy the right of authorship and the right to remuneration (Article 17).
Other audio-visual works referred to in the law include short videos, sports events, game screens, variety shows, MVs and other audio-visual works that are not movies or TV series, and also include new ways of exploiting music works brought about by industrial development.
It is worth noting that this Paragraph also clarifies that the right holder of music works is entitled to receive remuneration for audio-visual works whose ownership is not stipulated or is unclear. Here, the right to receive remuneration should be understood as including the use of audio-visual works in the subsequent dissemination process. To distinguish it from the right to receive remuneration in the production of audio-visual works, this article calls the right to receive remuneration in the subsequent dissemination process “the right to secondary remuneration”. The clarification of the right to secondary remuneration in the new law guarantees the benefits that music right holders are entitled to receive for the subsequent dissemination of audio-visual works, and solves the dilemma brought by Article 15 of the old Law, that is, in the past, the copyright of music works was absorbed by the copyright of audio-visual works. If the music right holders did not agree with the producers to recover the proceeds from the dissemination process in the initial contract on authorised production, the right holders could not claim any rights for the subsequent dissemination, that is, the authorisation of audio-visual synchronisation under the old law could not cover the proceeds from the use of music works in the dissemination process.
The question to be considered here is who is the payer: the producer or the user of audio-visual works? The legal provisions are not clear, and there are no supporting regulations or judicial interpretations at present. However, the author believes that it should be the common obligation of both the producer and the user, from whom music rights holders can choose one. For example, when a digital platform provides a large number of short music videos, game screens and variety shows produced by third-party users, in addition to obtaining the permission of the producers, it is necessary to pay remuneration to the right holders of music works used in the videos, unless the producers and music right holders have agreed on such matter in the production contract. Another example, for a large number of MVs used in karaoke bars, if the record company does not cover their use at KTV when making the MVs, the right holder of music works has the right to collect remuneration for the use at KTV.
source: https://www.lexology.com/library/detail.aspx?g=009a56e2-9891-4eff-9779-2167ff89559d
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