Analysis And Value Judgment Of Legal License Of Copyright

1.1.The works used are published works;

1.2.The use must comply with the specific circumstances stipulated in the copyright law;

1.3.In the process of use, the moral rights of the copyright owner shall not be infringed, and the normal use of the work shall not be affected. In addition, in the legal license of copyright, although it is not necessary to obtain the permission of the copyright owner in advance to use the copyrighted work of others, the copyright owner must be paid. This is the main difference between the legal license of copyright and the fair use of copyright.

The copyright law expressly stipulates the legal license of copyright in Article 23, paragraph 2 of Article 33, paragraph 3 of Article 40, paragraph 2 of Article 43 and Article 44. Compared with the provisions of the copyright law of other countries on Legal licensing, the copyright law stipulates a prerequisite, that is, the author declares that he or she reserves the right, which is a special provision of the copyright law on Legal licensing.

 

2. Nature of Statutory License

The legal license of copyright stipulates that users can use their works without obtaining the permission of the copyright owner in advance, but they must pay legal remuneration afterwards. Although this system restricts the copyright owner’s license right, it still protects his right to receive remuneration and satisfies the economic interests of the copyright owner. The advantage of this system is that it not only makes the public’s desire to make extensive use of works a reality, but also ensures the economic interests of copyright owners, encourages their enthusiasm for creation and investment, and thus reasonably distributes the interests of copyright owners and the public to a certain extent.

In addition, the legal licensing method has the characteristics of high efficiency and simplicity, which greatly reduces the cost of disseminating and using works, improves the economic benefits of users, and saves social wealth. As far as the copyright owner is concerned, because it saves the trouble of signing the contract, it can also concentrate on creation and produce more and better works, which also saves his investment cost and improves economic benefits.

Therefore, the nature of legal license is to restrict the copyright owner’s license right according to the direct provisions of the law, but protect its property rights and realize the balance of interests between the copyright owner and the public.

 

3. Characteristics of legal license

3.1.The licensed works must be published works;

3.2.The user must pay remuneration to the copyright owner;

3.3.The copyright owner shall not use it if he makes a declaration that it is not allowed to use it.

3.4. From the perspective of setting purpose, the setting of reasonable use is mainly from the perspective of personal use, to meet the needs of users for cultural products and allow them to use other people’s works in a small range, while the legal license is set to simplify copyright licensing procedures and promote the wide and rapid dissemination of works;

3.5.From the perspective of the object of use, reasonable use is limited to published works in most cases, and unpublished works in some cases, while the object of legal license can only be published works, because the scope of legal license is usually large, and once the unpublished works of others are used, the copyright owner’s right to publish will be seriously infringed;

3.6.In terms of the purpose of use, reasonable use is usually required to be non-profit, but the statutory license does not require it, which can be either non-profit or profit-making, and profit-making is the majority;

3.7.From the perspective of right restriction, in the fair use, the property rights of the copyright owner are restricted, while the legal license reserves the right to receive remuneration for the copyright owner in addition to the spiritual rights.

 

4.Conditions of Legal Permission

Statutory licensing refers to the system that, based on the provisions of the copyright law, users can use their published works in some way without the permission of the copyright owner, but should pay remuneration to the copyright owner.

According to the provisions of China’s copyright law, the following conditions shall be met for legal license:

4.1.The legal license is only limited to the direct and clear scope of the copyright law, and cannot be expanded arbitrarily

4.2.The use of legal license is limited to published works.

4.3.The statutory license must be based on the premise that the copyright owner has not made a declaration.

 

5. Types of statutory permits

5.1.Legal permission of textbooks

Article 23 of the copyright law stipulates: “To compile and publish textbooks for the implementation of the nine-year compulsory education and the national education plan, unless the author declares in advance that they are not allowed to be used, published fragments of works, short written works, musical works, or single artistic works and photographic works can be compiled in textbooks without the permission of the copyright owner. The legal permission of Chinese copyright includes the legal permission of textbooks, the legal permission of newspaper reprint, and the production of audio recordings The legal license for broadcasting published works, but the remuneration shall be paid in accordance with the provisions, indicating the name of the author and the name of the work, and shall not infringe upon other rights enjoyed by the copyright owner in accordance with this law. ”

The statutory license must meet the following conditions: first, the purpose of use must be to compile and publish textbooks for the implementation of nine-year compulsory education or national planning, and textbooks in Colleges and universities that do not belong to nine-year compulsory education do not apply to the statutory license; Secondly, the content used can only be limited to published fragments of works or short written works, music works, or single art works and photographic works.

5.2. Legal permission for newspaper reprint

Paragraph 2 of Article 33 of the copyright law stipulates that after the publication of a work, other newspapers and periodicals may reprint it, except for those that the copyright owner declares that it shall not reprint or excerpt it. Or publish as abstracts or materials, but pay remuneration to the copyright owner in accordance with regulations.

The statutory license must meet the following conditions: first, the works reprinted and excerpted are published in newspapers and periodicals; Secondly, the main bodies that can reprint and extract are also newspapers and periodicals. The use of other media, such as publishing houses that publish books, does not apply to legal licenses. It is worth noting that it is the copyright owner who has the right to make a statement that no reprint or excerpt is allowed, rather than the newspapers and periodicals that publish the works. In practice, many newspapers and magazines often claim that “without the consent of this journal, it is not allowed to reprint and excerpt the works published by this journal”. Such statements must be authorized by the copyright owner to be valid.

5.3. Statutory permission to produce sound recordings

Paragraph 3 of Article 40 of the copyright law stipulates: “a sound recording producer who uses a musical work that has been legally recorded as a sound recording by others to make a sound recording may not need to obtain the permission of the obligee, but shall pay remuneration to him in accordance with the regulations; if the copyright owner declares that it is not allowed to use, it may not be used.”

This legal license must meet the following conditions: first, it is a musical work that has been legally recorded as a sound recording by others. If the previous recording is illegal, that is, it is recorded as a sound recording without the permission of the copyright owner, its music works cannot be the object of legal license. Secondly, a recording producer who uses a musical work that has been legally recorded as a recording by others to make a recording must record it independently, and he cannot reproduce the recording previously recorded by others.

5.4.Legal permission to play published works

Paragraph 2 of Article 43 of the copyright law stipulates that radio and television stations may broadcast published works of others without the permission of the copyright owner, but shall pay remuneration.

Article 44 of the copyright law stipulates that radio and television stations may broadcast published audio recordings without the permission of the copyright owner, but shall pay remuneration. Unless otherwise agreed by the parties. The specific measures shall be formulated by the State Council.

The statutory license must meet the following conditions: first, the main broadcast is radio and television stations; Secondly, the broadcast content is published audio recordings and published works, but does not include film works and video products.

The legal license of copyright applies to the restrictions on the rights of publishers, performers, producers of audio and video recordings, radio stations and television stations.

 

Section 2  Value Judgment of Legal License of Copyright

Case: B city TV station v. H City TV station

1. Brief introduction to the case

From June to August 2021, B city TV station opened a new entertainment column program “northern music television (NMTV)”. This column is broadcast every Saturday at 6 p.m. and is very popular after it is broadcast. After receiving this information, H City TV station instructed its technicians in B city to completely reproduce each issue of “northern music TV”. From October to December 2021, H City TV station broadcast the “northern music TV” of B city TV station in the “TV song ordering station” program run by the station, and covered the logo of B city TV station with its own logo. According to the regulations of H City TV station, when ordering songs in the “TV song ordering station” program of the station, you need to pay a song ordering fee of 100 yuan to 200 yuan per song according to the length of broadcasting time.

In December, 2021, city B television station discovered the practice of City h television station and immediately asked it to stop infringement and compensate for losses. H City TV station did not agree with B city TV station. It believed that this practice was a common practice of local TV stations in the country at that time. At the same time, according to Article 43 of the copyright law of 1990, he does not need to make compensation.

 

2. Knowledge points involved in this case

2.1.Changes in Article 43 of the old and new copyright law.

2.2.Copyright protection of music TV.

 

3. Relevant provisions in the current law

Article 42 of the copyright law of 1990: Radio and television stations shall enjoy the following rights to the radio and television programs they produce:

3.1.Play;

3.2.Permit others to play and receive remuneration;

3.3.Authorize others to reproduce and distribute radio and television programs produced by them, and receive remuneration.

Article 44 of the copyright law of 1990: when a television station broadcasts another person’s films, televisions and videos, it shall obtain the permission of the film, television producer and video producer and pay remuneration.

Article 43 of the copyright law of 1990: radio stations and television stations may broadcast published audio recordings for non-commercial purposes without permission or payment of remuneration to the copyright owner, performer or producer.

Article 43 of the copyright law of 2001: Radio and television stations may broadcast published audio recordings without the permission of the copyright owner, but shall pay remuneration. Unless otherwise agreed by the parties. The specific measures shall be formulated by the State Council.

Article 45 of the copyright law of 2001: when a television station broadcasts a cinematographic work of others or a work or video product created by a similar method of film making, it shall obtain the permission of the producer or video producer and pay remuneration; To broadcast other people’s video products, the copyright owner shall also obtain permission and pay remuneration.

Article 36 of the regulations for the implementation of the copyright law in 1991: the copyright related rights and interests referred to in the copyright law and these Regulations refer to the rights enjoyed by publishers over their published books and newspapers, performers over their performances, producers of audio and video recordings over their audio and video products, and radio and television stations over their radio and television programs.

 

4. Opinions of both parties and the court judgment

The plaintiff claimed that the “northern music TV” program was frequently broadcast as a profit-making “TV song ordering station” program by H City TV station without the consent of the plaintiff. Until the prosecution of B city TV station, the program continued to be broadcast. This behavior seriously infringed on the relevant rights and interests of the plaintiff. Therefore, it is required to order the defendant:

4.1.Stop the infringement and destroy the videotape recording the plaintiff’s program privately in person;

4.2.The defendant publicly apologized to the plaintiff on his own TV station to eliminate the influence;

4.3.Compensate the plaintiff for the loss of 100000 yuan and bear the litigation costs of this case.

The defendant believed that this practice was a common practice of local television stations across the country at that time. At the same time, according to Article 43 of the copyright law of 1990, he did not have the problem of liability for compensation. In addition, the plaintiff did not provide sufficient evidence to prove the occurrence of infringement, so it requested the court to reject the plaintiff’s claim.

After the public trial of this case, the court held that the plaintiff enjoyed the adjacent right of “northern music television” program, and the defendant’s behavior was for-profit use, which obviously belonged to infringement. Therefore, the judgment of this case is as follows:

1.The defendant H City TV station shall immediately stop the infringement if it is established against the plaintiff’s infringement. Publish a notice on this TV station to eliminate the impact;

2.The defendant shall compensate the plaintiff for the economic loss of 100000 yuan;

3.The plaintiff’s music and television videos (including master tapes and reproductions) privately recorded by the defendant shall be confiscated and destroyed.

After the judgment, neither party filed an appeal.

 

5. Value judgment of this case

This case mainly involves the legality of the use of music TV programs of city B TV station by City h TV station without permission.

To clarify this issue, first of all, we need to know what rights City B TV station has over its music TV programs. Obviously, according to Article 36 of the regulations for the implementation of the copyright law in 1991, B city TV station enjoys the adjacent right to the TV programs it produces. The reason why the law makes this provision is that one of the purposes of the copyright law is to encourage the dissemination of works. And the dissemination of works to a large extent depends on the efforts of communicators, their labor and investment. At the same time, communicators often have to take greater commercial risks, so the law should protect the adjacent rights of communicators while protecting the copyright of authors.

There are three main types of works that can be legally used without the consent of the copyright owner and neighboring rights holders, namely, reasonable use, legal license and compulsory license. Compulsory license requires a prior request for license with reasonable conditions and reasons. The behavior of H City TV station obviously does not belong to this type. City h television station did not pay royalties to city B television station, so its behavior is not a legal license.

In this case, H city television station raised the defense of fair use on the basis of Article 43 of the copyright law of 1990. But this defense obviously cannot be established. Because there are three restrictive conditions in this clause:

5.1.The broadcast must be non-commercial;

5.2.The works played are only limited to audio recordings;

5.3.The works played must be published recordings.

Firstly, the “northern music TV” broadcast by H City TV station is an original work with music as the theme and similar film making methods. It is a combination of picture and music, so it does not belong to a simple recording. Moreover, when H City TV station broadcasts, the audience will charge a certain fee for each song on demand, which is obviously a kind of commercial broadcasting. Therefore, it cannot be exempted from liability by this legal provision.

Secondly, we should also understand the change of Article 43 of the copyright law from conditional fair use to legal licensing system. It is of great significance for the author and disseminator that the copyright law clearly protects the right of performance, especially the right of mechanical performance. Article 43 of the copyright law of 1990 stipulates that radio stations and television stations may broadcast published audio recordings for non-commercial purposes without permission or payment of remuneration to the copyright owner, performer or producer. This provision obviously grants radio and television stations an unreasonable privilege, which seriously damages the legitimate interests of authors and disseminators. Therefore, it has been criticized by Chinese intellectual property law circles and music circles for a long time.

Article 43 of the revised copyright law is amended as follows: broadcasting stations and television stations may broadcast published audio recordings without the permission of the copyright owner, but they shall pay remuneration. Unless otherwise agreed by the parties. The specific measures shall be formulated by the State Council. Article 43 of the copyright law, revised in 2001, changed the content of Article 43 of the original copyright law from a similar “fair use” to a similar “legal license”, and the copyright owner and the neighboring right owner have the right to mechanical performance in radio and television stations from scratch. This is a progress worthy of confirmation, and also makes artists in the music industry happy. However, this provision is still incompatible with the progress of the rule of law in Chinese society and the process of market-oriented reform in the field of cultural system. I believe that with the continuous development of society, this problem will be better solved.

Finally, we need to point out two points:

1.The unauthorized use of music TV programs of city B by City h TV station not only infringes the adjacent right of city B TV station, but also infringes the copyright of the copyright owner of music TV works.

2.When H City TV station broadcasts the music TV program of B city TV station, covering the latter’s logo with its own logo is also an illegal act of infringing on the name right of B city TV station, because it deprives the other party of the right to mark the name on the program made by itself.

 

6. Legal value of this case

Civil disputes involving music TV copyright are very common in China, which is related to the unclear understanding of its nature. The original music TV, which is made with music as the theme and similar to film making, belongs to the works stipulated in Article 3 of China’s copyright law in 2001. Video products that are not original, such as mechanical recording of live music performances, are not included.

According to the relevant judicial interpretation, the copyright of music TV is enjoyed by the producer. Those who reproduce, distribute or show music television without the permission of the producer shall bear civil liability in accordance with Article 47 of China’s 2001 copyright law. Those who make music television or copy, distribute or show the above-mentioned music television without the permission of the copyright owner of music works, or show music television for profit without the permission of the copyright owner of music works, and infringe the copyright of music works, shall also bear civil liability in accordance with the provisions of Article 47 of China’s 2001 copyright law. If the producer of music and television has an agreement with the copyright owner of music works on the use of music works and the payment of remuneration, and there are disputes over the sharing of remuneration due to the reproduction, distribution and projection of music and television by others, the copyright owner of music works may claim rights from the producer of music and television on the performance of the contract or infringement; Music and television producers claim rights from reproduction, distribution and projection.

When determining the amount of compensation for the infringer’s infringement of the projection right of a music and television producer, it shall be dealt with in accordance with the provisions of Article 48 of China’s 2001 copyright law. If the amount of compensation cannot be determined in accordance with the provisions of this article, consideration shall be given to the duration, scale and manner of the infringement, location, popularity of the work, local cultural market conditions, the fault of the infringer and the fees paid by the infringer to the relevant obligees, and the charging standards for the performance rights of the same type of music works collected by the copyright collective management organization shall be referred to.