The operators are free to be there
Shopping malls, restaurants, supermarkets and other business establishments
Play music from CDs you purchased
or music in music playback software
Does it constitute infringement?
Recently, the Shanghai Yangpu District People's Court (hereinafter referred to as the Yangpu District People's Court) heard such a dispute over infringement of the performance rights of works.
Replay of the case
The song "Sad People Don't Listen to Slow Songs" is included in the "Step by Step" music album released by Mayday, the album cover contains "MAYDAY", and the lyrics list in the album contains the "Lyrics/Song: Ashin" of "Sad People Don't Listen to Slow Songs". The plaintiff, the China Music Copyright Society, authorized by Chen Xinhong (Ah Xin), has the right to file a lawsuit in its own name for the infringement of the performance rights of the song "Sad People Don't Listen to Slow Songs".
The plaintiff found through notarization and evidence collection that the defendant W Commercial Management Co., Ltd. (hereinafter referred to as "W Company") was the operator of a large comprehensive shopping mall, and a number of popular background music was played in a loop in the square, so the background music played there was recorded. After returning to the notary office, the plaintiff's attorney prepared a repertoire based on the content of the recording, which included "Don't Listen to Slow Songs for Sad People".
The picture comes from the Internet
The plaintiff, the China Music Copyright Association, held that the defendant had infringed the plaintiff's rights and caused losses to the plaintiff by publicly performing and using the musical works involved in the case managed by the plaintiff in its business premises without obtaining permission from the right holder and the plaintiff and without paying the copyright royalties. In order to protect the legitimate rights and interests of the copyright owner, the plaintiff sued the people's court and requested that the defendant be ordered to compensate the plaintiff for the corresponding economic losses.
Defendant Company W argued that it had no objection to the fact that the music single was played in the mall in the plaintiff's evidence. Since the defendant played the song involved in the shopping mall for a short period of time and has stopped playing it at present, and the shopping mall has relatively little traffic, the popularity of the plaintiff's song is low, and it is hoped that the people's court will consider it as appropriate.
People's court adjudication
After trial, the Yangpu District People's Court held that the song was a musical work and was protected by the Copyright Law of the People's Republic of China (hereinafter referred to as the "Copyright Law"). The plaintiff is a mainland music copyright collective management organization established with the approval of the relevant state departments, and has the right to implement collective management of copyrights in accordance with the law. According to the relevant contract, the plaintiff has the right to exercise copyright rights against the music works managed by the Chinese Music Copyright Association (music collective management association in Taiwan, China) in the jurisdiction of Chinese mainland, and the plaintiff has the right to file a lawsuit in its own name. Accordingly, the plaintiff has the right to file a lawsuit for infringement of the performance rights of the song "Sad People Don't Listen to Slow Songs".
The right of performance, i.e., the right to perform a work in public, as well as the right to publicly broadcast a performance of a work by various means. The defendant infringed the performance rights of the song involved in the case by playing the song in question as background music in its business premises without the permission of the plaintiff or the copyright owner, and should bear the corresponding infringement liability.
Comprehensively considering factors such as the type and popularity of the works involved in the case, the scale of the defendant's business premises, and the circumstances of the infringement, the people's court ruled that the defendant should compensate the plaintiff for economic losses and reasonable expenses totaling 7,000 yuan.
After the first-instance judgment, neither party appealed, and the case is now in effect.
What the judge said
Kim Yang
Yangpu District People's Court
Intellectual Property Tribunal
Senior Judge III
Lu Siyuan
Yangpu District People's Court
Intellectual Property Tribunal
Judge's Assistant
Choosing the right background music can often create a shopping atmosphere, stimulate customers' emotions, and enhance the shopping experience, so it has become commonplace to play background music in supermarket stores, playgrounds and other places. However, in recent years, there have been many litigation disputes arising from background music infringement. In order to protect the lawful rights and interests of the majority of music copyright owners and raise the public's awareness of the protection of music copyright, the people's courts should actively express their judicial attitude towards protecting copyright and promoting the healthy development of the business industry.
1. Is it an infringement to play background music in a business premises without permission?
The right of performance protected by the Copyright Law refers to "the right to perform a work in public and to broadcast it publicly by various means". In this case, the defendant played background music in public on the business premises without authorization, and its conduct infringed the plaintiff's performance rights in respect of the work in question. There are two types of performances: live performances and mechanical performances. The former refers to the performer's use of acting skills to express the performance of the work to the audience, such as playing music, staging a script, reciting poetry, etc., while the latter refers to the act of using products, CDs and other material carriers to disseminate the recorded performance to the public. The circumstances of the dispute in this case fall into the latter category.
Although playing background music in the business premises is not directly profitable, the background music can create an atmosphere, improve the pleasure of consumers in the consumption process, and then promote their business behavior. Therefore, the operator should pay a reasonable royalty to the right holder.
The picture comes from the Internet
2. How can operators avoid the risk of infringement caused by the use of background music?
We note that in the course of the trial of similar cases, some defendants also argued that they were playing genuine records that were legally purchased or music downloaded from a third-party music service company, and therefore held that there was no need to pay additional royalties for playing them on the premises.
However, it should be made clear that even if you purchase a genuine CD or use a third-party music membership account to enjoy a music work, it is limited to repeated listening and playback within the scope of self-appreciation, and does not mean that you have acquired other copyright rights, including performance rights.
The judge hereby reminded that operators should pay full attention to copyright protection to avoid the risk of infringement, and if they need to play background music in their business premises, they can use music that has entered the public domain (copyright is open), or they can obtain authorization from the relevant music collective management association or copyright owner in advance.
Links to legal provisions
1. Copyright Law of the People's Republic of China
Article 8: Copyright holders and copyright-related rights holders may authorize collective copyright management organizations to exercise copyright or copyright-related rights. Legally established copyright collective management organizations are non-profit legal persons, and after being authorized, they may claim rights in their own name for copyright owners and copyright-related rights holders, and may conduct litigation, arbitration, and mediation activities involving copyright or copyright-related rights as parties.
……
Article 10: Copyright includes the following personal rights and property rights:
……
(9) the right of performance, that is, the right to perform works in public, as well as the right to publicly broadcast performances of works by various means;
……
II. Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Copyright
Article 7: Manuscripts, originals, lawful publications, copyright registration certificates, certificates issued by certification bodies, contracts for obtaining rights, and so forth provided by the parties may be used as evidence.
Natural persons, legal persons, or other organizations that sign works or products are deemed to be the owners of copyrights and copyright-related rights and interests, unless there is proof to the contrary.
Article 25: Where the actual losses of the rights holder or the infringer's unlawful gains cannot be determined, the people's court shall determine the amount of compensation based on the request of the parties or the application of the provisions of paragraph 2 of article 48 of the Copyright Law ex officio.
When determining the amount of compensation, the people's court shall consider the type of work, reasonable royalties, the nature of the infringement, the consequences, and other circumstances to make a comprehensive determination.
……
Article 26: The reasonable expenses paid for stopping the infringement as provided for in the first paragraph of Article 48 of the Copyright Law include the reasonable expenses incurred by the rights holder or the authorized agent for investigating and collecting evidence for the infringement.
On the basis of the parties' litigation demands and the specific circumstances of the case, the people's courts may calculate lawyers' fees that comply with the provisions of the relevant state departments within the scope of compensation.
▴ Swipe up to see more ▴
Source: Shanghai Yangpu District People's Court
编辑：Sharon