In June 2016, Shanghai Intellectual Property Court concluded another case concerning "KTV copyright infringement". The appeal made by the Appellants Shanghai Yundi Entertainment Co., Ltd. and Shanghai Holiday Catering & Entertainment Co., Ltd. was dismissed by the court, with respect to their infringement upon the rights of reproduction and screening, and the original judgment was affirmed. This is the 71st case concerning "KTV copyright infringement" concluded by Shanghai Intellectual Property Court since its foundation one and half a years ago.
As online communication is becoming more and more convenient, the right of reproduction and the right of screening of music compositions are "easily dismissed" by merchants. Behind a prosperous facade of the KTV and entertainment industry is the growing incidence of copyright infringement of music compositions and copyright disputes. Since its foundation on Dec. 28, 2014, Shanghai Intellectual Property Court has accepted 92 cases concerning KTV copyright infringement, including 60 cases in 2015 and 32 cases in the first half of 2016. 71 of them have been concluded. This shows the growing tendency of cases concerning KTV copyright infringement.
As shown on the involved song list in the judgment documents, both old songs familiar to us, such as Peach Flowers in Blossom, Look Over Here, Girl, So Transparent Is My Heart, Quiet Summer, Happy Breakup, The Fruits of Midsummer, Love in Hiroshima, Heart Too Soft, Heartbroken Pacific and Love ING, and modern network musical pieces are included in the involved music collection, indicating a large scope of KTV song infringement.
The KTV copyright infringement cases are mainly featured by a high degree of homogeny of litigations, difficulty in finding infringement facts, low rate of litigation response by the main body of infringement and a high losing rate, etc. Among the cases of this kind concluded by Shanghai Intellectual Property Court, those being involved include not only KTVs of famous brands such as "Holiday" and "Shanghai Galacity", but also some less well-known ones. More than ninety percent of these KTV operators were found guilty of infringement after trial. Under such situation we have to reflect on what on earth has caused this problem.
Shanghai Intellectual Property Court found through trials that most of these KTVs did not know whether these works were under the protection of the copyright law. Musical and television works, also called MVs, which are completed by original signers or actors, themed by certain music composition, have certain plot and images with sound produced on a medium through photography, sound recording, editing and combination, can be displayed continuously by virtue of a proper device, and include creative intellectual work of producers in multiple aspects, are generally recognized by KTVs as works under the protection of Copyright Law. While some musical and television works that are made up of imageries of concerts, record the live performance of singers without fixed camera position, or made of imageries on several concerts of a single signer by selecting, cutting and editing different images, scenes and views, and inserting scenes of daily life outside the concert and sidelights are often not recognized by KTVs as works under the protection of the Copyright Law. For instance, in a case between Shanghai Galacity Entertainment Co., Ltd. and China Audio-video Copyright Association, the former proposed that the involved audio-visual programs did not have originality and did not constitute musical and television works. But after trial, Shanghai Intellectual Property Court held that the second kind of works also had originality, thus also belonged to musical and television works created in the method similar to filmmaking. Therefore, the involved audio-visual programs also have originality and constitute musical and television works created in the method similar to film-making, thus should be protected by the Copyright Law.
In terms of the compensation amount, the Court also increased the compensation amount for the infringement. According to the closed cases, under normal circumstances the compensation for each song is about RMB 300 subject to the number and popularity of the involved songs. If the song enjoys high popularity, the compensation for the song may be as high as one or two thousand yuan. If there are quite a number of songs, it's ordinary to compensate RMB four to five thousand. In a case between Shanghai Mindi Entertainment Co., Ltd. and China Audio-video Copyright Association, Shanghai Mindi Entertainment Co., Ltd. was ordered to make a compensation of more than RMB 100,000. The increase of compensation reflects the society's respect to copyright holder and the strength of judicial protection, the assistance of the Court in promoting the development of cultural industry, as well as the resolution to enhance copyright protection.
Judge Hu Mi from Shanghai Intellectual Property Court held after analysis that there were two main reasons for the rapid growth of this kind of cases are. First, KTV operators' lack of legal consciousness. According to relevant regulations, KTV operators shall pay royalties since Jan 1, 2007, but very few KTV operators actually pay royalties; while some others take chances for infringement actions, pursue short-term profits and turn a blind eye to such regulations. Second, it's an indisputable fact that now quite a number of music publishers entrust China Audio-video Copyright Association with litigation agency, and they are more active and normative in finding infringement and safeguarding rights, which causes the significant increase of such cases.
Music, as a necessity in daily life and the common wealth of the society, needs joint protection by various aspects of the society. Faced with frequent occurrence of disputes over KTV copyright infringement, Shanghai Intellectual Property Court suggests that the government, market participants and the public should fulfill their respective responsibilities. Relevant departments of the government and industrial associations should make concerted efforts to continue to strengthen publicity and supervision on protection of intellectual property and establish a stable channel to make paid use of copyright a stable and normal state, and provide enterprises with a stable and mature market environment. KTV operators should also raise their consciousness for right protection, and take reasonable measures to prevent the risk of intellectual property infringement. The Court will enhance protection, give full play to the dominant role of judicial protection and raise the costs of infringement, so as to create an atmosphere in which the whole society protects music copyright and intellectual property.
