The increasing number of legal disputes in China arising from live performances of the musical works of others raises questions as to how such works may be lawfully licensed for use.
Securing a licence
Musical works in China are protected under the provisions of the PRC Copyright Law (as amended in 2010). Article 19 identifies the “right of performance” as a protectable interest, and covers live performances or performances that involve public broadcasting of copyright works. In addition, performers playing to a live audience, or playing others’ music as part of their acts, are also considered live performers. This includes many diverse activities such as singing, instrumental music, poetry recitations, etc.
The PRC Copyright Law allows rights owners to perform their own works, to give permission to anyone else to do so, and to receive remuneration as agreed. Additionally, Article 36 of the law provides that in order to perform another person’s work live, performers must first secure (and if required pay for) a licence from the copyright holder. Performance organizers are also required to obtain and pay for licenses. Of course, the conditions set out in Article 22(9) of the law, i.e. relating to “performance of a published work without charge to the public and without payment of remuneration to the performer”, refers only to fair use and should not be construed to allow general unauthorized performances of copyrighted works.
A licensor of a musical work is the individual or organization that owns copyright in it, and generally includes lyricists and composers, arrangers and translators, the music author’s successors, and any other party who has secured copyright. Licensors have the right to license others to give live performances of musical works in which they have copyright and to be paid for it.
In practice, however, it is often difficult for Chinese copyright holders to control use of their work. This is at least partly because performers either don’t know how to apply for licences or because the framework for doing so is underdeveloped, especially in cases where live performances involve multiple musical works and multiple copyright holders, when ascertaining and contacting rights holders might involve significant cost and create problems with tight deadlines. In order to resolve this problem, the Copyright Law allows for live performance licences in the PRC to be secured through the Music Copyright Society of China (MCSC).
The MCSC is a Chinese non-profit organization for the collective management of copyrights in musical works. It holds a collective management contract with copyright holders, issuing licences to, and collecting licence fees from, users of others’ musical works.
Currently, the MCSC has more than 5,000 members and has executed mutual representation agreements with similar organizations in more than 60 countries, giving it the right to license use of musical works of foreign copyright holders in the PRC. The MCSC therefore enjoys management rights for the great majority of musical works in the world’s major countries with the exception of:
- musical works of persons who are not MCSC members, and
- musical works over which MCSC members have not granted management to the MCSC, and
- musical works of rights holders from countries with which the MCSC has no mutual representation agreements, as well as musical works not covered or excluded by mutual representation agreements.
In practice, when a live performance of others’ musical works is planned, an application for a search of the works should first be made to the MCSC in order to establish whether the works to be performed are still protected by copyright and whether they are managed by the MCSC. Normally this involves providing a list of the musical works that are to be performed, including information such as the titles, the lyricists and composers and the original performers.
A user may perform the licensed musical works live only after he or she has secured a licence from the MCSC and paid the licence fee. At present, the MCSC calculates a license fee for each musical work according to the following formula: number of seats × average ticket price × 4%, while also specifying a minimum licence fee.
In arriving at a decision, the MCSC will also consider factors such as the extent to which a user’s business activities rely on the musical works, the size and profitability of the industry in which the musical works are to be used, the degree of complexity involved in issuing the licence and collecting the licence fee, the market environment, international practice, and other relevant factors.
If a musical work that is to be performed is not managed by the MCSC, the proposed user is nonetheless required to secure the permission of the copyright holder and pay a licence fee as agreed by the parties or in accordance with the law.
Article 36 of the Copyright Law also governs cases in which applications for licences are made by an organizer of a live event as opposed to a performer. In either case, the rights granted and the obligations of the parties are the same.
If a performer carries out the live performance, he or she is the licensee. If the performer is part of an entity, the licensing procedures may be carried out by the entity. Finally, if the performance is organized by a specific party that is not a performer, that party is required to fulfil the relevant licensing obligations. In practice, licence fees may be paid either by the organizer or the performer, as there are no hard and fast rules that dictate who should be responsible for making payment in these cricumstances.
Wang Yadong is the executive partner of Run Ming Law Office, and advised Zhou Hongwei in the “first domestic Weibo case”. Zhang Jing is a lawyer with the firm.
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