Rules for the Protection of Music Works in China that Foreign Entertainment Enterprises Should Pay Attention to

Disputes over Infringement upon the Copyright in Yamaha Electronic Keyboard Accompaniments

There are complicated copyright issues in the beautiful world of music composed of rhythm, melody, and sound. Should different degrees of protection in copyright law be given to different roles of the main melody, chords, and rhythms in the world of music? Can the accompaniment built into the keyboard be protected by intellectual property rights? Should infringer be liable for the apology in the infringement of the right to sign music works? 

These intractable issues have received responses in a typical case that a prestigious Chinese keyboard manufacturing company represented by Beijing Wis & Weals Law Firm against its competitor in Japan regarding the keyboard music copyright infringement. Based on this typical case, we discuss whether the electronic accompaniment music can be protected by the copyright law, and whether infringer be liable for the apology in the infringement of the right to sign music works？

I. The copyrightability of electronic keyboard accompaniments

1. Elements of musical works

The expressive elements of music including rhythm, melody and harmony, combining with each other according to their respective laws and characteristics, representing an inseparable whole and form an artistic sound form to express music thoughts.

Melody refers to "a combination or sequence of pleasant musical sounds” which is able to express a particular artistic conception or thought. Melody is the most important part of musical works.

Harmony is a series of chord processes based on melody, which is determined by melody. Therefore, from this point of view, harmony has a certain contribution to the overall effect of music, but it is hard to form independent music copyright. Although there are few protected expressions in harmony, they can assist with the judgment on copyright infringement.

Rhythm refers to the "conventional pattern of musical sequences of different lengths and strengths." Pure rhythm is not original in the sense of copyright. Although rhythm is changeable through the adjustment of time and amplitude, the rhythm change is still limited not only in terms of mathematical permutation and combination, but also in terms of common musical practice.

2. The copyrightability of electronic keyboard accompaniments

A musical work should have the basic originality which should be embodied in its ability to completely express a certain human emotion for the composer. When it comes to music elements, such originality is often embodied in the main melody. Therefore, in a general sense, music without a main melody is just a series of sound, not a musical work.

Chords and rhythms are only neutral, rudimentary, standard and general music materials that are aimed to decorate the main melody of music works, rather than to express emotions. Accompaniments are meaningful only in the sense of music technology instead of music creation. No audience can identify the emotion of an accompaniment if it is played separately.

The electronic keyboard style accompaniments are composed of chords and rhythms, both of which are usually public resources and are music materials formed by human beings in the long-term time. Like words and idioms in languages, they are also general professional norms in the field of music, rather than original works created by electronic keyboard products manufacturers. No electronic keyboard manufacturer may claim any right to chords and rhythms.

II. The application of legal liability of apology for infringement upon the right of authorship in works

1. The ownership of personal rights in works of legal entities, works for hire and commissioned works

There is no controversy about the ownership of personal rights in works of natural persons, which will not be discussed in this article. This article will cover works of legal entities, works for hire and commissioned works.

As for works of legal entities, Article 11 of the Copyright Law stipulates that: "Where a work is created under the auspices and according to the intention of a legal entity or other organization, which bears responsibility for the work, the said legal entity or organization shall be deemed to be the author of the work." 

As for works for hire, Article 16 of the Copyright Law stipulates that: "Works created by a citizen in the fulfillment of tasks assigned to him by a legal entity or other organization shall constitute works for hire. Unless otherwise specified in paragraph 2 of this Article, the copyright in such works shall be enjoyed by the author; provided, however, that such legal entity or other organization shall have the priority to exploit such works within its business scope. Within two (2) years upon completion of such works, the author may not authorize the exploitation of such works by a third party in such same manner as used by such legal entity or other organization in exploiting such works without the consent of such legal entity or other organization.

In any of the following cases, the author shall enjoy the right of authorship in the works for hire, while the legal entity or other organization shall enjoy other rights in or to works for hire, and may reward the author:

(1) Drawings of engineering designs and product designs, maps, computer software and other works for hire mainly created with the material and technical resources of the legal entity or other organization and for which the legal entity or other organization bears responsibility.

(2) Works for hire in which the copyright is enjoyed by the legal entity or other organization in accordance with laws, administrative regulations or contracts," 

As for commissioned works, Article 17 of the Copyright Law stipulates that: "The ownership of the copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of such a contract or of an explicit agreement in such a contract, the copyright in the work shall be enjoyed by the commissioned party." 

To sum up, there are explicit stipulations on the ownership (personal and property rights) of works for hire and commissioned works. Works for hire consist of two types in terms of ownership: general works for hire in which the property and personal rights are enjoyed by employees; special works for hire in which the right of authorship is enjoyed by employees and other rights enjoyed by the employer. The ownership of commissioned works shall be determined as agreed. In the absence of such agreement, they shall be owned by the commissioned party.

For works of legal entities, whether the "deemed author" can be equated with the "author" is directly related to the ownership of personal rights in copyright. However, there are no explicit stipulations in this regard in the prevailing laws of the PRC.

In practice, there are many cases in which works for hire are not clearly differentiated from works of legal entities. In many cases which have similar or even identical circumstances, different judgments were issued.

2. The application of apology in the infringement upon right of authorship

As far as the typical case is concerned, the plaintiff claimed that the legal liability for infringement of the right of authorship should be assumed by means of "apology".

However, if the disputed work is a work for hire, then the right of authorship in the work shall be enjoyed by the employees, and the plaintiff Yamaha is not entitled to claim "apology".

If the disputed work is a legal entity's work and the plaintiff therefore enjoys the right of authorship in the work, then two problems arise as a result:

(1) Does "deemed to be the author" stipulated in Article 11 of the Copyright Law mean "equal to the author"? In the case of "deemed to be the author", are the personal rights such as the right of authorship the same as those of the author?

(2) Is additional evidence required to prove the requirements of "created under the auspices and according to the intention of a legal entity or other organization" stipulated in Article 11 of the Copyright Law? Is the burden of proof of the owner exactly the same as "the citizen, legal entity or other organization whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work" stipulated in Article 11 of the Copyright Law?

With regard to point (1) above, the key point in judging whether "deemed to be the author" and "equal to the author" are identical lies in the perception of this question "can a legal entity be an author?" In this regard, one view is that a legal entity cannot be an author in that the creative ability is the primary condition of becoming an author, and the creative ability is the ability of human beings to use their thinking on the basis of physiology. Objectively speaking, only natural persons can become the authors of works, and legal entities can never become the authors of works.

Another view is that a legal entity can be an author in that a legal entity has independent personality and will, capacity for civil rights and civil conduct.

As mentioned above, no conclusion has been drawn as to the controversy regarding the question "can a legal entity be an author?" According to the first view, a legal entity cannot be an author, then the infringement upon the right of authorship has nothing to do with a legal entity. In the case of the second view, a conclusion to the contrary will be drawn, i.e. a legal entity can be an author and enjoy all the rights that an author may enjoy.

In this regard, the reviewer is of the opinion that the creation of works is a factual act, and the actors who directly implement the act of creation must be natural persons, not legal entities. However, the ownership of copyright should be defined on the basis of legal acts, not just factual acts. Therefore, a legal entity should be able to enjoy the right of authorship.

With regard to point (2) above, whether additional evidence is required to prove the works of legal entities or, like works of natural persons, is it enough to identify the author only on the basis of Article 11, paragraph 4, of the Copyright Law: "The citizen, legal entity or other organization whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work"?

In this regard, we are of the opinion that, in case the plaintiff claims that the disputed work is a legal entity's work, the plaintiff is required to produce evidence to prove that the disputed work meets the requirements stipulated in Article 11, paragraph 3, of the Copyright Law, such as reflecting the will of the legal entity. In addition, the right of authorship itself is a right of an author, so identifying the author through authorship has logical flaw. Therefore, we conclude that in this sense, the burden of proof of the owner of a legal entity's work should be heavier than that of a natural person author.