On March 31, the National Copyright Administration released the text of the Copyright Law of the People's Republic of China (draft amendment) on its official website and solicited suggestions and comments from the public.
Based on the suggestions of experts from the Chinese Academy of Social Sciences, Zhongnan University of Economics and Law, Renmin University of China and other institutions, the revised draft strives to keep pace with The Times and respond to the practical needs of economic globalization and scientific and technological development. Breakthroughs have been made in the areas of "orphan works", rental rights of performers, reverse engineering of computer programs, broadcasting rights of performers and producers of recordings, seizure and seizure rights of administrative law enforcement, and caps on infringement compensation.
But controversy is rife. In recent days, well-known musicians such as Gao Xiaosong, Song Ke and Wang Feng have questioned the provisions of Article 46 on "using the recorded works of copyright owners without permission" through micro-blogs. At the same time, some people are also disappointed with Article 69, which stipulates that websites "shall not undertake the obligation to censor information related to copyright or related rights."
"Without good legal support, the content industry will be more difficult in the future." Liu Xin, vice president of Beijing Sea Butterfly Music Co., LTD., said in an interview with reporters on April 5 that the music industry has high expectations for the revision of the Copyright Law, but the current draft amendment may not make the industry better.
The music industry rebounds
According to the draft revision of the Copyright Law published by the National Copyright Administration, article 46 states: "Three months after the first publication of a sound recording, other producers of sound recordings may, in accordance with the conditions stipulated in Article 48 of this Law, use their musical works to make sound recordings without the permission of the copyright owner."
In response, one musician questioned: "This is not asking yourself?" Gao Xiaosong, a well-known musician with nearly four million followers, said on Weibo: "It is difficult for a new song to become a household name in three months, and then you can cover and record it without the permission of the copyright owner... It is a blatant encouragement of Internet piracy."
Zhao Junjie, a lawyer from Guangdong Zhuoxin Law Firm, told reporters that the current Copyright Law also has statutory licensing provisions for recording (Article 40), but the difference is that the new revised draft deletes the exception of "the copyright owner's declaration that it is not allowed to use shall not be used" and adds the time limit of "3 months later". Zhao Junjie, a lawyer, believes that the abolition of the exception in the recording statutory licensing system that states that it cannot be used has weakened the power of copyright owners to control their own works to a certain extent.
Of course, Article 48 of the revised draft stipulates the payment of remuneration for this kind of use without the permission of the copyright owner, that is, the user pays the royalties to the copyright collective management organization within one month after the use, the latter shall transfer the royalties to the relevant right holders in a timely manner, and establish a query system for the right holders to query the use of the work and the payment of the royalties free of charge. The standards for the royalties shall be those formulated by the copyright administration department under The State Council.
Some musicians said that this means that the right holder has a legal protection period of 50 years, but loses the right to license and pricing power, and the music industry has since returned to the era of "unified purchase and marketing" supply and marketing cooperatives.
You Yunting, a well-known intellectual property lawyer, told reporters that copyright protection should respect the rights of rights holders, and there would be some problems with the way copyright collective management organizations collect fees and transfer them, mainly because some of the current collective management organizations are "very bureaucratic and the distribution system is not transparent."
"The management of copyright by collective management organizations on behalf of copyright should follow the principle of voluntoriness." Liu Xin, vice president of Beijing Sea Butterfly Music, told reporters that the operation of some existing collective management organizations lacks transparency, "how the money is collected, how much it is collected, how it is distributed, etc., is not transparent." For example, he said that after some musicians hand over the public broadcasting rights to relevant organizations, they can only receive four or five thousand yuan a year, and even a few hundred yuan in general. According to him, Yan Yidan, the songwriter of the theme song of last year's hit TV series Step by Step, received more than 300 yuan from the copyright collective management organization alone.
Controversial "safe haven principle"
Liu Xin said that copyright, including three personal rights and more than a dozen property rights, belongs to private rights, and the relevant provisions of the new Copyright Law revision draft do not protect this private right well, on the contrary, it strengthens the feeling of public power, is not conducive to the establishment of a fair fee model, and is not conducive to the development of the cultural industry.
At the same time, he considered that the new revised draft article 69 was also open to debate. "When Internet service providers provide network users with simple technical services such as storage, search or links, they shall not undertake the obligation to review information related to copyright or related rights," the article states. After the infringement is found, the infringed may notify the network service provider in writing and ask it to take necessary measures such as deleting, blocking, and disconnecting the link. The network service provider shall not be liable for compensation if it takes necessary measures in time after receiving the notice; If it fails to take necessary measures in time, it shall be jointly and severally liable with the network user.
"If you don't have the rights, you shouldn't use them." Liu Xin believes that such legal provisions are unreasonable, it is likely to cause network service providers to abuse the "safe haven principle", after nearly ten years of development network service providers from weak to strong, some have become internationally renowned enterprises, but many network service providers are still abusing the safe haven, the spread of piracy has played a role in promoting.
In this regard, You Yunting believes that the revised draft provisions on information network communication do not break through the current relevant laws and regulations, but only integrate the content scattered in the "Regulations on the Protection of the Right to Information Network Communication", the "Tort Liability Law" and other judicial interpretations, and upgrade from the original regulations, judicial interpretations and other forms to legal provisions, and be clear.
Lawyer Zhao Junjie believes that in judicial practice, novel expressions such as "simple network technical services" and "no obligation to review information" in this article may easily cause disputes. He suggested adding more restrictive conditions, such as: it does not include participating in infringement, abetting or helping others to commit infringement; Make it clear that the Internet service provider refers only to the ISP(Internet service provider), not the other way around
Include ICP(Internet Content Provider); In the event of a dispute, the ISP shall assist the right holder or the law enforcement and judicial authorities to provide the necessary information of the suspected direct infringer.
Liu Xin said that now the music company in the face of both income and strength are far more than their own Internet companies, the cost of rights protection is quite high, the industry expected through the amendment of the "copyright Law", can change the status quo, but it seems that this expectation may be disappointed.
Digital music embarrassment
The draft copyright law's provisions on online dissemination of information are reminiscent of previous lawsuits between music companies and Baidu.
Liu Xin said that because it is difficult for music companies to prove the background data of Internet service providers to obtain real downloads, once infringement lawsuits occur, they will face the problem of low compensation standards and high litigation costs, such as referring to the international general standard or the existing standard of 1-2 yuan per download of mobile operators, which was originally tens of millions of trial downloads. However, the data provided by Internet service providers is often hundreds of thousands of times, so even if a lawsuit is won, the music company may only get hundreds or thousands of dollars in compensation, which is far from the actual amount of infringement.
With the development of digital technology and network technology, the traditional business model of the record industry through the distribution of physical records is almost dead. But Liu Xin said that in the current copyright environment, it is difficult for pure music copyright companies to survive.
According to Liu Xin, the current income of domestic music companies mainly includes three aspects: brokerage income shared with artists; Wireless copyright revenue from telecom operators; Copyright revenue from the online Internet, the proportion between the three is about 30%, 40%, 30%(of course, due to the different business models of each company will vary greatly).
Among them, the wireless copyright income is mainly the revenue sharing of the three major operators such as mobile, Unicom and telecom. Liu Xin revealed that the overall market size of this part of the revenue is about 30 billion yuan, seemingly large, but the music company finally got only about 2%, "ring back tone function fee to the operator, only download content fee for 50 percent, because the operator will be through the monthly, membership and other ways of discount, really to the music company's hands, each download only one or two cents or even a few cents."
As for the copyright income from online Internet companies such as Baidu and Tencent, although the situation has improved to a certain extent compared with the situation of completely receiving no money in previous years, Liu Xin believes that the Internet company gives "very little", and the distribution data is not transparent, and the pricing of listening and downloading is extremely unreasonable. It is completely insufficient to make up for the production costs, planning costs, publicity costs and other costs of the song.
This is for some of the larger music companies, and those small and medium-sized music companies, because they rely on Internet companies to promote the platform, can receive less royalties. Liu Xin believes that for all music companies, brokerage income and copyright income are the pillars, if only brokerage income walks on one leg, the risks and challenges for music companies are huge.
"At present, it is difficult for domestic music companies to survive entirely on music, either to do the whole industry chain, or back to the TV station, some singers basically do not expect copyright income, can only set up studios to seek performance income." Liu Xin said.
At the same time, because Internet companies can obtain song rights at low or no cost, they have no incentive to find more business models for digital music, which leaves less money for music companies to share, creating a vicious circle.
Liu Xin said that music companies and Internet channels are not the enemy, should work together to make the industry bigger, promote the development of the industry, and one of the prerequisites for achieving this win-win state is a good copyright protection, but the current draft amendment of the Copyright Law and the expectations of musicians have a great distance.
According to him, some of the music industry's own organizations will hold a seminar in the near future to express their opinions through relevant industry organizations. According to the official website of the National Copyright Administration, people from all walks of life can submit suggestions and comments on the draft amendment to the Copyright Law through letters, faxes and emails until April 30, 2012.
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