XIII

1.According to Paragraph a, Article 3.1 of the Berne Convention for the Protection of Literary and Artistic Works, works created by nationals of member states that have joined the Convention are protected in China whether or not they have been published.

2.If a part of a song that others have copyrighted is sung during the performance, even if the entire song involved in the case is not sung, as long as the above content can make the public aware of the main part of the work, the unauthorized implementation of the act may also constitute a violation of copyright.

3.The producer of a TV program shall fulfill relatively strict censorship obligations for the songs and videos involved in the performance of the program.When the above content is used in a performance, the producer of the program shall be obliged to obtain the license of relevant copyright owners and pay remuneration for all the performances.If the producer of the program obtains the license by entrusting the performer to obtain the authorization independently, the producer shall strictly check whether the authorization is legal and complete, and shall bear a stricter review obligation.

Case: P wrote a song A in December 2007.P agreed that his student M could sing a small part of the song on the program which was produced by a French television station in May 2008.In addition, P did not authorize M to perform this song on other shows and occasions, and had explicitly rejected the requests to use this song.At the same time, P also explicitly informed the director Wang of China’s TV station C that he did not authorize M to use his works in the program.However, M and China’s TV station C used P’s works in the program recorded in August,2008, and even tampered with the songwriter’s signature on the work.P believed that the acts of M and China’s TV station C have infringed on his right of publication, right of authorship, right of integrity, right of performance, right of broadcasting, etc.((2008) Yi Zhong Min Chu Zi No.11472)(https://www.daowen.com)

The court held that: The actions of M and China’s TV station C violated P’s right to publicize, sign, perform, and broadcast the original song,but did not infringe its right to protect the integrity of the work.

P is a citizen of the French Republic.Both the French Republic and China are members of the Berne Convention for the Protection of Literary and Artistic Works.According to the Berne Convention for the Protection of Literary and Artistic Works, P’s work is subject to the law in China whether or not it has been published.In this case, M publicly performed the case-involved song of which P enjoyed copyright in the program of China’s TV station C without P’s permission, and tampered with the songwriter’s signature on the work.Although M only sang the second bar and the climax of the song, and did not sing the entire song, the above contents have made the public obtain the main part of the work, which also constituted an infringement of the right of authorship, right of performance, right of broadcasting.At the same time, because the song involved in the case has not yet been published in public, this act also violates P’s right of publication.

TV station C as the producer of this TV program involved in the case shall obtain the permission of the copyright owner and pay the remuneration for the performance organized by the program.If TV station C obtained the license by entrusting the performer to obtain the authorization independently, it shall strictly check whether the authorization was legal and complete.In view of the relatively strict review obligation that TV station C should assume, TV station C did not make any verification when it knew that the author of the song had not explicitly authorized the song, so TV station C was at fault.Therefore, the above-mentioned evidence is not enough to prove that C has fulfilled its duty to review whether the performance of M has obtained the permission of the copyright owner.TV station C used P’s copyrighted song in the performance of its organization without his permission.China’s TV station C and M infringed P’s right of publication, right of authorship, right of performance and right of broadcasting.

In this case, as M did not sing all the parts of the song in question,there was no act of distorting or tampering with the song involved in the case, and such performance did not hinder the public’s understanding of the song, and did not damage the reputation of P.Therefore, the court decided that M and China’s TV station C did not infringe P’s right to protect the integrity of works.