一、Brief description of the case

     The plaintiff, Seeing Music, is authorized by the author and producer of the recording of the song in question, enjoys all the copyright and neighboring rights of the song in question, and has the right to defend the rights in its own name.

        The defendant Hunan Broadcasting used the song in the program "Dance Storm" without permission and authorized MangoTV.com to play it on the cell phone mobile terminal and computer terminal platforms operated by it. The plaintiff believed that the above acts of the two defendants infringed the plaintiff's copyright and sound recording producer's right in respect of the song in question, and should be jointly liable.

        After the trial, the court finally found that the two defendants provided the program "Dance Storm" containing the musical work and sound recording product without permission through MangguoTV.com and other platforms, which made the musical work and sound recording product available to the public at the selected time and place, infringing the plaintiff's right of information network transmission in relation to the musical work and sound recording product respectively, and jointly compensated the plaintiff for economic loss and reasonable expenses totaling The plaintiff is entitled to a total of RMB 50,000 yuan for economic loss and reasonable expenses.

二、Court decision

        In this case, the court mainly argued the following points on whether the two defendants constituted infringement.

        Firstly, the statutory license of radio and TV stations under the Copyright Law restricts "broadcasting acts", but does not include "information network transmission acts", therefore, in this case, Hunan Radio and Television recorded the content of the program in question and then authorized a third party to provide it to the public by way of information network transmission. Therefore, in this case, Hunan Radio and Television recorded the content of the program in question and then authorized a third party to make it available to the public by way of information network transmission

        Secondly, the scope of authorization of the cooperation agreement signed between the two defendants and the Association does not include the right of information network transmission of musical works and sound recordings, not to mention that the authors and producers of the songs or the plaintiff did not join the Association, therefore, Hunan Broadcasting does not have the right to authorize the recording of the musical works and sound recordings as background music of the program and to authorize their broadcast based on the contract.

        In addition, based on the close cooperation relationship between the two defendants, the scope of authorization of the cooperation agreement with the Association, the economic benefits obtained from the broadcast of the program in question, and the infringing clips that were not completely removed even after the notification of the lawyer's letter, MANGOTV.com failed to fulfill its due obligation to review and pay attention to the content of the videos it was authorized to broadcast, and was at fault for the infringement, and should be jointly liable for compensation.

三、Lawyer Commentary

        The scope of this case was the "information network dissemination" of MangoTV.com, and the court firstly clarified that the collective management organization does not have the right to authorize on behalf of a work that is not a member of the collective management organization. At the same time, the scope of "statutory license" of broadcasting organizations does not include the act of "information network dissemination", so the two defendants in this case constituted copyright infringement.

        If we further discuss this case, does the act of using unauthorized "musical works" as the soundtrack of a variety show and producing "variety show" as an "audiovisual work" constitute copyright infringement? infringement? As a matter of fact, in the second point of the "Court Judgment" section above, the court has already mentioned that Hunan TV does not have the right to use the musical works in question as background music for filming, but did not further clarify.

        In the copyright infringement dispute between Hunan TV and Li Zhi, although the Hunan Provincial High Court did not specify the type of rights infringed, it also held a similar view: "Hunan TV used Li Zhi's works as material in its own works created in a way similar to filming movies without Li Zhi's permission, which infringed Li Zhi's copyright, including the right of attribution. " 

        According to the current Copyright Law, the right of filming is "the right to fix a work on a carrier by means of filming an audiovisual work", and what it controls is not only the simple act of copying, but also the act of creating a new work based on the original work. Although the right of filming mainly applies to the case of filming written works such as novels into audiovisual works such as TV dramas and movies, according to the legislator's interpretation, "the unauthorized use of a piece of music as music for a movie, the unauthorized intake of art or photographic works into a movie or TV also constitutes an infringement of the right of filming". 

        In this case, the program "Dance Storm" constitutes an audiovisual work, and Hunan Radio and Television used the music in question as the background music for the dancers' performance in the process of producing the program, and produced a separate vertical screen direct shot version for each dance program, and the dancers' choreography and performance gave the music in question a new connotation. This act constitutes the fixing of the work on a carrier by means of filming an audiovisual work, which infringes the filming right of the musical work in question. Therefore, we believe that the act of using unauthorized musical works as the soundtrack of a variety show and producing it as an audiovisual work is an infringement of the right of filming musical works. The case only deals with the infringement of the right of information network dissemination, and the plaintiff can further defend the rights of Hunan Radio and Television's filming and broadcasting behavior.

With the full text of the judgment