Copyright Lawsuit Highlights Law Flaws

Chen Jie

The Oriental Song and Dance Ensemble, a leading song and dance troupe in China, was accused of infringing upon the musical copyright of a number of musicians by the Music Copyright Society of China early this month.

This is the first time that a collective management body, rather than an individual or company, has initiated litigation against a troupe following the issuance of China's Copyright Law in 1991.

Chaoyang District People's Court has accepted the lawsuit.

According to Ma Jichao, who is in charge of the Law and License Department of the society, in the troupes performances between July 31 and August 3 in 1999 and January 12-16 this year, the Oriental Song and Dance Ensemble used a number of musical works without getting prior permission from the authors, to whom the society acts as agent. The troupe also paid no fees to the authors, according to Ma.

Ma said that the society has been in negotiations with the ensemble since last August, requesting they fulfill their obligations, but the ensemble has dragged out the negotiations for over a year and has not yet given a satisfactory reply.

However, according to an official called Chen, from the Oriental Song and Dance Ensemble, the two sides agreed on the fee to be paid, but the society later raised the amount.

"We never said that we would not pay them the fee, but it seems that they are charging a completely random amount," Chen said.

"As a song and dance troupe, we also feel copyright should be protected, as often copyright belonging to musicians in our troupe is infringed upon. But the laws for musical copyright are not perfect," Chen complained.

Copyright infringement currently runs rampant in China's artistic circles.

It is estimated that China has over 5,000 troupes and employs around 140,000 people in music creation and performance.

However, because China did not issue its copyright law until 1991 and the concept of copyright has still not sunk in, people have got used to using music without paying authors a fee.

Statistics reveal that 2,168 cases related to copyright infringement were heard in courts around the country between 1996 and 1999, however, only a few of them were concerned with musical copyright.

"It's strange that although most composers and performers do not want their rights infringed upon, they seldom turn to legal protection," said Gu Jianfen, a renowned composer and vice-chairperson of the Chinese Musicians' Association.

"In a superficial way, some musicians do not maintain their rights actively, and the current Copyright Law and its flawed implementation offers them little material assistance," Gu said.

Ronnie Zong, chief consultant with Generation Music, a consulting firm and studio in Beijing, pointed out: "As a product of a planned economy, some clauses no longer meet the needs of today's market economy."

The most evident example is Clause 43 in the current law.

According to this clause, Chinese radio and television stations do not need to pay or ask for permission from authors, performers or producers when they broadcast or show musical pieces for non-commercial purposes.

But in reality, under the conditions of a market economy, most radio and television stations do use the pieces for commercial purposes.

There are also gaps between China's copyright Law and the three international copyright treaties China has signed.

They are the Berne Convention, the Universal Copyright Conversion and Protocols and the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms.

But all these treaties are stricter than the copyright law of China, which has resulted in double standards for domestic musicians and foreign musicians.

Moreover as China is about to join the World Trade Organization (WTO), the gaps between China's copyright law and the WTO's Trade-Related-Intellectual Property System needs to be closed as soon as possible.

Fortunately, discussions over the revision of China's copyright law are now heating up.

Against this backdrop, an International Symposium on the Protection of Music Copyright initiated by the International Federation of Musicians and the Chinese Musicians' Association, was held in Beijing last month.

During the symposium experts and scholars from various countries also agreed that governmental support and improvements in the law were necessary.

"Although this issue will not be resolved overnight, we hope that the symposium will highlight the imperfections in the laws on music copyright in China," said Zhang Xian, vice-general secretary of Chinese Musicians' Association.

The experts and scholars also agreed that collective management is a practical and effective way to protect and enforce copyright.

"It is very difficult for an individual to keep an eye on all his works as infringements can happen at any time and in many places," said composer Wang Liping, who is also the director of the China Film Philharmonic Orchestra.

"Musicians can join an organization of this kind in their own country and the organizations of different countries can authorize each other, thus musicians' rights can be protected systematically and globally," said Wang.

Sponsored by the former State Copyright Bureau, now known as the State Intellectual Property Bureau, and the Chinese Musicians' Association, the Music Copyright Society of China was founded in Beijing in December 1992.

It is the only collective management organization for music copyright in China.

People who want to be a member of the Society are asked to sign a contract to entrust the society with the management and protection of their copyright.

The society then ensures that each author's works are performed, broadcast and published legally, and a fee is charged to anyone using the music.

Over the past eight years, the society has attracted 1,665 members including 577 lyrics writers, 1,038 composers and 50 others, such as publishers and people who have inherited music.

In addition, the society has set up 10 local representative offices in a number of provinces and has signed co-operation contracts with over 30 related overseas organizations.

However, compared with mature organizations of this kind in developed countries such as Britain, Germany, Japan, France, the Netherlands and Finland, the 8-year-old society is still in its infancy and "collective management" is still a new concept to the majority of Chinese people.

Furthermore, as information technology makes rapid progress, copyright infringement through the Internet has become a new challenge.

The Motion Picture Expert Group audio-player 3, otherwise known as MP3, is the latest form of audio file that can be transferred across the Internet and it is gaining a larger presence in China because of its near CD-quality sound and the ease of downloading it from the Internet.

The society has made a solemn statement at all websites which offer a free MP3 download service that using any music currently under their management without authorization is forbidden.

China's copyright law, which will be revised soon, will also have to respond to the ceaseless advances of the information industry, experts said.

(China Daily 11/27/2000)

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