Changes to copyright protection of music still slightly off-key

Apublic call for comments on the PRC Copyright Law (draft amendment) went out recently, stirring lively debate in the music world, with the provision on “statutory licensing of sound recordings” being the focus.

Article 46 of the draft specifies that: “Three months after the first publication of a sound recording, other producers of sound recordings may, pursuant to the conditions set forth in Article 48 hereof, use the former sound recording to produce their own sound recordings without the permission of the copyright holder.” Article 48 specifies the conditions that must be satisfied to use the published work of a copyright holder without his or her permission, including payment of a royalty to the collective copyright management organisation at the rate set by the State Council’s copyright authority within one month after use. Numerous famous musicians, including Liu Huan and Gao Xiaosong, have expressed the opinion that this provision will abet pirating and could easily lead to monopolisation by the collective management organisation.

Articles 46 and 48 jointly constitute the “statutory licensing of sound recordings” in intellectual property law, but this is not unique to the current draft. In the current PRC Copyright Law, the “statutory licensing of sound recordings” is found in the third paragraph of Article 40, namely: “When a producer of sound recordings produces a sound recording of a musical work which has previously been lawfully produced as a sound recording, it need not obtain permission from the copyright owner but shall pay remuneration in accordance with regulations, unless the copyright owner has declared that use is not permitted.” The main differences between Articles 46 and 48 of the draft and the third paragraph of Article 40 of the current Copyright Law are: (1) the addition of a time limit of three months in the draft; (2) deletion of the exclusionary provision, “unless the copyright owner has declared that use is not permitted”, from the draft; and (3) the draft’s specifying of the conditions for implementation of statutory licensing.

Wang Yadong is the executive partner and Zhang Jing is a lawyer at Run Ming Law Office