Webcasts, or broadcasts made over the Internet, can be divided into live webcasts and interactive webcasts. An interactive webcast includes live broadcasts of games, shows and entertainment. Presenters often use unauthorized musical works where they earn income by singing songs, displaying talent and interacting with fans for rewards, or by sharing advertising revenue.
In 2020, the annual report of Chinese webcasting platform DouYu found that its gross revenue was 9.6 billion RMB ($ 1.5 billion), with net profit of 485.5 million. of RMB ($ 76 million). So, it can be seen that the webcast industry can be very rewarding. The presenter can only start broadcasting by signing an agreement with a webcasting platform and making money without leaving home.
Types of offense
Presenters independently choose the time and content of the broadcast, and decide whether or not to share their broadcast rooms on the web. Therefore, the webcast of anchors is immediate and unpredictable. Counterfeiting occurs frequently in the webcasting process, and the modes of counterfeiting involve performing or singing unauthorized musical works.
Prior to the amendment to China’s Copyright Law in 2020, the type of right violated referred to Article 10.17: “All other rights that a copyright owner is entitled to enjoy.” After the amendment, the right violated should be “the right of broadcast” in article 10.11 of the law.
Judgment criteria of the Court
In adjudicating such cases, the court will first examine the evidence regarding the property, whether the chain of authorization is complete and valid, and then consider whether the evidence of the infringement is true and valid. When calculating damages, the court will take into account the following: (1) the originality, cost of creation, popularity and frequency of use of the violated music; (2) the popularity and / or malice of the anchor; (3) the number of viewers and their praise for the webcasting room; and (4) how the platform is known, whether the webcast is broadcast, and whether the infringing video has been widely broadcast.
Since it is difficult to defend rights with Anchor as the defendant, the copyright owner usually makes the webcast platform the defendant to sue. In doing so, the copyright owner is trying to push the platform to properly regulate its activities, enter into a cooperation agreement with them, and create a database of whitelisted musical works.
To determine the liability of the broadcasting platform, the court will consider the terms and circumstances of the infringement, as well as the platform’s fault. To reduce their share of responsibility for infringement, major webcasting platforms could change the ownership of intellectual property rights involved in webcasts from anchor platforms with the right to use and republish musical works.
Meanwhile, the platforms can punish the infringing acts committed by the anchors by issuing a notification about the ban on audio or video services, banning the anchors from the webcast room, removing the infringing information, limiting relevant resources, withholding or freezing commissions, and banning affected accounts and webcast rooms. .
However, platforms usually send an internal notice or letter symbolically, or can only check the reading to show that they have done their due diligence in an attempt to evade or reduce their liability. However, due to the sharing of profits with the anchors, the platforms cannot be exonerated from their liability.
The final results
Due to the uncertainty surrounding webcast violations, it is impossible for copyright owners to track violations and gather evidence at all times. To reduce the cost of advocacy, evidence can be obtained with a high degree of probability. Obtaining evidence via blockchain and time stamps has been widely accepted by the court. With full and valid proof of ownership, it is difficult for anchors and webcasting platforms to escape their liability.
Although the court finds a webcasting platform guilty of direct infringement or aiding in infringement, the amount of damages it determines is generally very low. Since breaches are repeatedly committed by different anchors, copyright owners are unlikely to find evidence every time breaches have occurred, and the platforms are in fact permissive.
The small damages are grossly disproportionate to the benefits that platforms derive from their breaches. Further efforts should be made to increase the amount of damages, properly apply punitive damages, order platforms to provide contextual evidence of profits, and consider a mandatory ban on counterfeit anchor accounts.
Fu Zhenkun is Senior Partner and Gao Rongrong is Intellectual Property Lawyer at Corner Stone & Partners
Cornerstone and partners
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