XIV

1.The use of other people’s music works is usually divided into substantive use and reasonable use.Substantive use of other people’s music works without permission constitutes infringement.To determine whether a substantive use is constituted, consideration should be given to whether the content used can fully ref lect the ideological content that the author hopes to express through the work, and whether the pieces of music used can ref lect the melody, rhythm, harmony, polyphony arrangement and design of the author’s artistic personality in the musical works.

2.When using a musical work in a film or television drama, if the use involves only a few measures or lyrics of the work, and the entire lyrics or score is not used, it shall be considered as a reasonable use, where musical works can be used without the permission of the copyright owner and no remuneration need to be paid, but the author’s name and the work’s name shall be specif ied.

3.If the song is produced by cooperation, the lyrics and music can be used separately, and the copyright of this song can be enjoyed by the composer and lyricist separately.(https://www.daowen.com)

Case 1: The Music Copyright Society of China is a collective management organization of musical works copyright in Mainland China.It has signed a contract with the copyright owner of Songs A and B and was authorized to become the copyright owner of song A and song B, has the right to manage the right of public performance, broadcasting, and right of recording and distribution, and can file an infringement lawsuit in its own name.When Company C produced the TV series J, the above songs were used without the permission of the copyright owner or its authorized agency the Music Copyright Society of China.In the first episode of the series, an actor sung song A for 56 seconds, and in the thirteenth episode an actor sung song B for 17 seconds.The Music Copyright Society of China claimed that Company C’s unauthorized use of the above-mentioned music clips in the TV series J constitutes an infringement.Company C argued that it only used the above music for the atmosphere, and the time of use was very short.((2004) Gao Min Zhong Zi No.627)

The court held that: To determine whether Company C committed copyright infringement, the key issue in this case is how to determine the nature of Company C’s use of the above-mentioned works in the series.Regarding this issue, the court distinguished between the following two situations: (1) If someone uses a relatively complete piece of lyrics or music, although the time is short, the lyrics used have fully expressed the thoughts that the author hopes to express through the work and the music used which accounts for a certain proportion in the entire work has presented an arrangement and design of melody, rhythm, harmony and polyphony with the artistic personality of the author, which should be defined as a substantial use of musical works.In the TV drama involved in the case, the use of the musical work A was performed by singing the complete lyrics twice for a total of 56 seconds, so this use of the work was a substantial use of the work.(2) If the use of a musical work involves only a few passages or lyrics of the work, and the entire lyrics or score is not exploited, considering that the proportion of the used part in the entire musical work is small, the complete expression of the work and the ideological content expressed by the author and the author’s unique conception of the music are not reproduced substantially, and that the form and content used are very limited and will not adversely affect the market value of the musical work, nor will a threat to the distribution of the musical work be posed, that is, it substantial damage to the interests of the copyright owner will not be caused, such use shall be considered as a reasonable use of other people’s works, where musical works can be used without the permission of the copyright owner and no remuneration need to be paid, but the author’s name and work name shall be specif ied.In the TV series involved, the use of Song B by Company C only involved a few passages or lyrics of the work.Although the musical work was used for a long time, it did not use the entire lyrics or score completely, which should be considered as a reasonable use.

Company C essentially used the lyric content of musical work A in the TV series J.As a collaborative work, the lyrics and music of the song can be used separately, and the copyright of this song shall be enjoyed by the composer and lyricist separately.Therefore, as long as the copyright contract signed by the Music Copyright Society of China and the music songwriter or author is legal and valid, Company C’s use of the musical work in the TV series J without permission constituted an infringement of the Music Copyright Society of China.