Case Guide
When wandering through the dazzling shopping malls, the melodious background concerts make people more relaxed physically and mentally, and the pleasure of shopping will also be increased. However, playing songs or other background music without the permission of the right’s holder may constitute infringement. A shopping mall in Nantong was sued to the court for playing songs without authorization. The first-instance judgment has come into effect. The shopping mall was ordered to stop infringement and compensate the plaintiff Music Copyright Society of China for economic losses and reasonable expenses totaling 10,000 yuan.
Case review
Music Copyright Society of China is a collective management organization of music copyrights jointly initiated by the National Copyright Administration and the Chinese Musicians’ Association. It is authorized to obtain the management rights of songs such as "The more you love, the painful you feel" in mainland China, including the right to initiate legal proceedings to illegal performers of related works in its own name. After investigation, the association found that a shopping mall in Nantong was playing the above-mentioned songs in its business premises without permission, and then proceeded to the court after notarizing the evidence.
Music Copyright Society of China sued that a shopping mall used the musical works entrusted by the plaintiff to play as background music for business operations, infringing the copyright of the plaintiff, and requested an order for a shopping center to stop using the musical works involved and compensate for economic losses 75750 yuan and a reasonable cost of 10065.97 yuan.
The Nantong Intermediate People’s Court found that Article 48 of the Copyright Law of the People’s Republic of China stipulates the following regulations. Copy, distribute, perform, show, broadcast, compile, and pass the information network, without the permission of the copyright owner, to anyone who disseminates his work to the public shall bear civil liabilities. These may include stopping the infringement, eliminating the impact, making an apology, and compensating for losses according to the situation. In this case, the defendant’s shopping mall played the song as background music in its business premises without the permission of the right’s holder, infringing the plaintiff’s right to perform for the work, and it did not meet the scope of fair use. It should bear the responsibility of stopping the infringement, and compensate for the damages. The plaintiff did not provide evidence to prove its actual losses, nor did it provide evidence to prove the defendant’s profit from infringement. The court comprehensively considered the factor of defendant’s subjective fault, the nature and circumstances of the infringement involved, the popularity of the works involved in the case, and the plaintiff’s reasonable expenses for the case and determined the specific compensation amount. Accordingly, the Nantong Intermediate People's Court made the above judgment.
The Music Copyright Society of China was dissatisfied with the amount of compensation in the first-instance judgment and filed an appeal to the Jiangsu Provincial Higher Court. A few days ago, the Jiangsu Provincial High Court made a second-instance judgment: dismissed the appeal and upheld the original judgment.
Judge interpretation
The performance right protected by the "Copyright Law" refers to the "right to perform the works publicly and to broadcast the works by various means publicly." Normally, performances include live performances and mechanical performances. Live performance refers to the act of performing the work directly to the audience by the performer, such as a live performance by a singer at a concert. Mechanical performance refers to the use of mechanical equipment to publicly broadcast the work, such as using optical discs and electronic media. In this case, a shopping mall played background music in a public place, which belongs to the latter situation. It was about to use machinery and equipment to broadcast the work publicly after the performance of the work was recorded. Its behavior infringed the performance right of the work involved in the case. Although playing background music in business premises is not making profit from the background music directly, the background music can create an atmosphere, improve consumers’ experience in the shopping process, and promote their business performance. Therefore, operators should pay copyright owners reasonable usage fees. In judicial practice, a defendant merchant argued that it was playing legally purchased genuine records or music downloaded from a third-party music service company and should not be required to pay additional usage fees. What needs to be clarified is that the digital-based music works are obtained from regular third-party companies through legal channels, but their use rights are only repeated listening and playing within the scope of self-appreciation, and it does not mean that they have obtained other copyrights including performance rights at the same time. If you want to play the music publicly, you still need to obtain the permission of the copyright owner, otherwise it may constitute infringement and fall into legal disputes.
