New China Copyright Law Has Musicians Worried

There’s been a lot of grumbling and ramblings on weibo and among musicians in Beijing about the new proposed copyright laws put forward on March 31st. Let’s just say they’re not happy about this at all and I don’t see foreign IPR holders being happy about it either. Here is an extract from China.org

The National Copyright Administration published a preliminary amendment draft to revise China’s copyright laws on its official website on Mar 31. Posted to collect public opinion and constructive feedback, bloggers and music producers singled out Articles 46 and 48 for closer study.

According to Article 46, any record producer who acts pursuant to Article 48 shall have the right to make recordings of musical works owned by another, without needing authorization from the original owner, given that the content had been published for three months or longer.

Article 48 stipulates guidelines for individuals or corporations who use non-original content: contact the National Copyright Administration department under the State Council; specify the original author and source of material; and submit a usage fee to the copyright collective administration organizations as stipulated by the National Copyright Administration within one month of use. The copyright collective administration organizations will then transfer payment to relevant parties.

Article 46 has dropped a bomb on the music industry, and has generated negative feedback from famous artists such as Li Guangping, Gao Xiaosong and Wang Feng. They believe Article 46 will harm the interests of original music producers.

There are a couple of things to consider here:

– This is just a proposed draft. Nothing is official yet!
– Essentially, after 3 months, artists would lose control over their work… this is the part that most musicians i spoke to were pissed off about. They’re used to having covers of their songs but there were means to stop unfair use! Now, they legally have no right to say NO. So, if a brand wants to use your song for a commercial and you can’t agree on fees, they can hire someone to cover it and get away with it.
– The Usage Fee is another contentious point! How will original content creators get paid? and how much? Who would be held accountable?

I don’t think we’ve heard the last of this… I’m curious to see how it will unfold! I’m also quite surprised that the foreign media has not picked up on this yet. Usually, they have a field day with IPR related stuff.

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5 Responses

  1. The proposed amendments on their face (and upon initial review) seem to be beneficial and in the interest of musicians and other copyright owners. I believe the grumblings you refer to are due to a lack of understanding of copyright law and the ultimate intent of the proposed amendments, which seem to be striving to bring China more into with international copyright standards. I will provide a longer comment at a later date to discuss why these amendments could be good.

  2. I am anxiously waiting to hear how this is potentially a good thing.

  3. Froog says:

    I always get anxious about whether the woolliness of official Chinese can ever really be compatible with framing effective laws. But legal Chinese sounds even woollier in these draft discussion documents. And then it usually gets woollier again when it’s translated. And then even woollier when a translation is paraphrased by a journalist or blogger.

    My concern – as a sometime lawyer – is that, unless formally defined elsewhere, the terms “record producer” and “make recordings” are dangerously imprecise. It’s not only the guy we conventionally think of as a record producer, but numerous others – musicians, engineers, music companies – who are involved in “making a recording”, and, even more importantly, in selling it. Presumably it’s reproducing a recording for profit that’s really in issue here. If you record yourself on your computer for your own amusement, no-one’s likely to see that as a problem. Posting such a recording on Youku or whatever isn’t likely to be either, as long as you’re not seeking to make a buck off it. Neither the activity sought to be regulated, nor the categories of people likely to be involved in it, seem to me to be adequately specified in this paraphrase.

    The “make recordings” part is presumably intended to refer only to making new recordings of a piece of music (i.e., performed by different musicians), not to any re-recording or re-using of the original performance in, e.g., a film soundtrack or a TV commercial (it might do, though; that “make recordings” as it stands doesn’t seem that clear).

    There need to be special rules for the use of ‘samples’ of an original recording in other commercially released music (a tricky thing to arrange!), and – as BD says – for preventing ‘unfair use’ by copycat musicians, particularly in commercials and soundtracks where there could be high fees involved.

    If the current draft really does omit provisions on these issues (has anybody read every one of those dozens and dozens of turgid, almost incomprehensible clauses??), there should be plenty of time to lobby for their inclusion. These things usually take a couple of years to become active legislation.

    I suspect Peter’s right, that this is just an attempt to introduce a clearcut and streamlined approach to handling music copyright that’s in line with most developed companies. It could be a good thing, if it can be made to work, and if it doesn’t overlook important issues like those mentioned. I haven’t done any IP law in YEARS, and I have no idea how these things are regulated in Europe or North America these days. It’s that 3-month time limit on artist-authorised covers that looks a bit dodgy to me. 3 years (or 1 year, or even 6 months) would give the original artist much more security; 3 months doesn’t look like enough.

    My chief worry, though, would be how efficient and scrupulous a state-run central agency is going to be at collecting and redistributing those fees!!

  1. April 9, 2012

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