Since 2003, the domestic law courts have accepted several cases of copyright infringement involving MTVs. As similar cases have aroused wide attention in all social circles, including the legal field, the recording industry and the relevant trade societies，a good many articles have been written and meetings held. This attention has brought about a heated discussion concerning the legal attribution of MTVs, the standard for calculating fees and the means of collection. Attaching much importance to the MTV cases and the related legal issues, the No.2 Intermediate People’s Court of Shanghai consults various data, organized several workshops and heard opinions from experts and scholars, functional departments and trade societies before rendering its judgments. To better understand the legal issues, China IP journalists interviewed Lv Guoqiang, Deputy Chief Justice of the No.2 Intermediate People’s Court of Shanghai and a noted IP expert.
    China IP: Please briefly describe the background of MTVs.
    Lv Guoqiang (“Lv”): MTV is an art form which combines a musical format with television images. It has been vividly described as “visual musical notes”. Warner Amex Cable Company of the United States launched a new channel called “Music Television” on August 1, 1981 on the cable television network. It was the first CATV network that broadcasts music television programs 24 hours a day and hence came to be called “MTV”. When this new art form was brought to the Chinese Mainland, it was first named “Visual Song”, then “Television Song”, and finally “MTV”. In Hong Kong SAR and the Taiwan region, it was customarily called “Music Video” or “MV”.
    China IP: How have the law courts of Shanghai accepted and heard MTV cases?
     Lv: From December 2003 until August 2004, Go East Entertainment, Sony Music, Universal Music, and Warner Music filed 6 MTV cases with the No.1 and No.2 intermediate courts of Shanghai, against respectively, Shanghai Shangge Food & Drink Co., Ltd. (“Cash Box”), Shanghai Tongling Culture & Entertainment Co., Ltd., Shanghai Haoledi Music & Entertainment Co., Ltd. (“Haoledi”), Shanghai Zongyi Music, Food & Drink Co., Ltd., Shanghai Qilin Tower Culture & Entertainment Co., Ltd. (“Qilin”), and Shanghai Green Light Entertainment Co., Ltd. All 6 defendants were large karaoke companies operating in Shanghai. The 4 plaintiffs claimed that the 6 defendants’ use of 18 MTVs without due authorization from the plaintiffs had infringed the copyrights of the plaintiffs and they requested a judgment ordering the 6 defendants to pay in total RMB 1,000,000 as compensation for their economic losses and RMB 300,000 for the reasonable fees incurred by the plaintiffs in investigating the infringing acts. The 6 MTV lawsuits have received a strong reaction from the cultural and entertainment sectors in Shanghai and a large amount of attention from all social sectors. Moreover, the No.2 Intermediate People’s Court of Shanghai accepted a case of reputation infringement filed by Cash Box, Qilin, Haoledi and other parties, totaling 30 well-known karaoke companies in Shanghai, stating that Go East Entertainment, Sony Music, International Federation of the Phonographic Industry (IFPI), Beijing Tianwei Law Firm, Beijing Yingke Law Firm, and Shanghai Tianwen Law Firm had infringed their reputation rights. These 30 plaintiffs claimed that Go East Entertainment and the others had issued lawyer’s letters to them without legal basis and announced to the news media that the use of MTVs by these plaintiffs had infringed the rights of Go East Entertainment and the others. They further alleged that the acts of Go East Entertainment and the others had damaged the reputation of the plaintiffs and seriously infringed their reputation rights, so the plaintiffs requested a judgment requiring the defendants to pay a total of RMB 1,010,000 to the plaintiffs as compensation for their economic losses.
    China IP: From a legal perspective, what are the issues involved in these disputes?
    Lv: The disputes are focused on whether an MTV work is “created with quasi-cinematographic techniques” or a “video product”. It is very difficult to decide the legal attribution of MTVs, because the legal provisions are not definite about the difference between works created with quasi-cinematographic techniques and video products. The boundary between the two is vague. The legal attribution of MTVs directly affects the nature of the plaintiff’s legal rights. If a MTV is defined as a work created with quasi-cinematographic techniques, the holder enjoys the copyrights and may claim the exclusive right to exhibit it. The exhibition right means the right to “exhibit to the public a work of fine art, photography, cinematography and any work created with quasi-cinematographic techniques through film projectors, over-head projectors or any other technical devices”. If a MTV is defined as a video product, the holder has a subsidiary right and may only claim the rights provided in Article 41.1 of the Copyright Law -- “the right to authorize others to reproduce, distribute, rent and communicate to the public on an information network such audio recordings or video products and the right to obtain remuneration therefor”.
    China IP: How is the legal attribution of MTV regulated in foreign countries?
    Lv: No dispute has arisen in other countries as to whether a MTV is a creative work or a video product, because they do not have the concept of “video product”. “Video product” is unique to the Copyright Law of China. Generally “cinematographic works” or “audio-visual works” are used in foreign countries to cover all film works, television works and video products. Films and MTVs are generally described as audio-visual works in France and are protected as cinematographic works in UK and USA.
    China IP: What are the main arguments concerning the legal attribution of MTV rights currently in China?
    Lv: As to the legal attribution of MTVs, four typical concepts exist presently in China:
    Firstly, the concept of “cinematographic works”; that is, all MTVs are works created using quasi-cinematographic techniques. The concept of video product as being an object for copyright protection only exists in China alone. In international practices MTVs are protected as quasi-cinematographic works.
    Secondly, the concept of “musical works”, that is, MTVs are not cinematographic works, nor are they works created with quasi-cinematographic techniques; rather they belong to the category of musical works. MTV is an art form which gives priority to the music and makes the images subsidiary. MTV was originally devoted to promoting musical works and was offered for free along with the musical works. The consumers who patronize karaoke parlors mainly use the contents of the musical work – lyrics and music, but not the background images of MTV. The background images serve to visualize the music and would be meaningless without the music. Since the 1980s when karaoke came to China, the governmental regulators, the musical companies and the karaoke businesses have uniformly accepted that MTV is a musical work.
    Thirdly, the concept that MTVs are video products. As MTV functions to express to the maximum extent lyrics and music, it is no more than a package or a disseminating technique. Its originality relies only on the manner of is dissemination and expression technique. It does not have the “originality” of the artistic field as provided for in the Copyright Law. Therefore, it is a video product.
    Fourthly, the “tradeoff” concept, that is, MTVs are works created with quasi-cinematographic techniques and that they cannot be indiscriminately combined with video products. As to the legal attribution of MTVs, it should be dealt with on a case-by-case basis, that is, essentially on the legal element of whether an MTV has originality – is it a result of intellectual work in the field of literature or art that the author has created independently. Some MTVs are works created with quasi-cinematographic techniques and some are video products. 
    The application of these four concepts will result in different legal consequences as to the determination of the legal attribution of MTVs. According to the idea of “cinematographic works”, the plaintiffs may enjoy the exhibition right. However, according to the ideas of “musical works” or “video products”, the plaintiffs do not have the exhibition right and their claims should be rejected. As to the “tradeoff” idea, the legal attribution of MTV depends on its originality.
    China IP: In your opinion, how can the legal attribution of MTV be determined?
    Lv: The term “works created with quasi-cinematographic techniques” and the term “video products” are two totally different concepts in the Copyright Law of China. According to Article 4.11 of The Regulations on Implementation of the Copyright Law, “cinematographic works” or “works created with quasi-cinematographic techniques” means such works that are shot on a media, consist of a series of images with or without accompanying music, and can be shown or disseminated with the help of a proper device or by other means. According to Article 5.3 of the Regulations, “video products” means the recordings of continuous images or pictures with or without accompanying sound, not including “cinematographic works” or “works created with quasi-cinematographic techniques”. The works created with quasi-cinematographic techniques are an object of copyright protection, and video products are an object of protection by a subsidiary right.
    To be a work created with quasi-cinematographic techniques, an MTV should satisfy three conditions: (1) a series of images and pictures, with or without soundtrack is shot on a medium and can be shown or disseminated with the help of an appropriate device or by other means; (2) the contents of the image and the music match each other; and (3) the content of the image is original. Among them, the first two are easy to determine, but the third is difficult and essential. To determine whether an MTV is a work created with quasi-cinematographic techniques, it is essential to determine whether the MTV is original, or whether it is the product of intellectual work of literature or art that the author has created independently. A music television work should be regarded as a work that is created with quasi-cinematographic techniques if it takes a specific musical work as its subject, consists of a series of images with soundtrack which are shot on a medium through such creative activities as shooting, recording, clipping, synthesizing, etc., and can be shown continuously with the help of an appropriate device. A video product, which is a mechanical recording of a live concert, is not original, and it is not a work created with quasi-cinematographic techniques. In these cases, the originality of an MTV may be decided through a comparative analysis on the production method and the image content of the MTV. The plaintiff has the burden of proof on the originality of a given MTV.
    China IP: What was the holding of the law court in the case of Go East Entertainment vs. Qilin with respect to the legal attribution of MTVs?
    Lv: Among the MTVs under dispute, the law court decided that Lovers’ Words and Returned Love are works created with quasi-cinematographic techniques. These two MTVs are a series of television images with a soundtrack which were shot with quasi-cinematographic techniques and embody the creative work of directing, shooting, sound recording, clipping, synthesizing, etc. The image content and the musical subject are well matched, and the storyline of the image further illustrates the internal meaning of the musical work.
    However, the law court decided that Light Year is not a work created with quasi-cinematographic techniques, mostly on the grounds of its image content. It is a live stage play footage performed by singers Chen Huilin and Xu Zhi’an; and the two singers sing the song Light Year live. This is also confirmed by the last two MTVs in this special collection which also contains video clips from the same live stage play. In light of technology, Light Year is a combination of some video clips from the live performance and the original soundtrack, which are processed with simple techniques, and it is not original. The plaintiff also acknowledged at court that the images of Light Year are footages from a musical stage play.
    China IP: In the case of Go East Entertainment vs. Qilin, what did the court decide with respect to the standard of compensation concerning the MTV? 
    Lv: According to the Copyright Law, “Where a copyright or a copyright-related right is infringed, the infringer shall compensate the right holder in light of the actual loss incurred to the right holder, or where the actual injury is difficult to compute, from the illegal gains of the infringer resulted from the infringement. The amount of compensation should also include the reasonable expenses paid by the right holder to stop the infringing act. Where the actual loss incurred by the right holder or the illegal gains of the infringer cannot be ascertained, the people’s court shall, depending on the severity of the infringing act, grant compensation of RMB 500,000 or below”. In this case, the law court has used its discretion in light of various factors because the actual loss incurred by the right holder and the illegal gains of the infringer are both difficult to ascertain. Generally speaking, it is simple and justifiable to compute the amount of compensation by referring to the normal license fee. However, as China now does not have a uniform standard for the license fee of MTV, the law court has referred to the standard fees that Music Copyright Society of China (MCSC) has established for the performing right of musical works. In light of the duration of infringement actions, operating scale, using mode, business place, subjective fault of the infringer, popularity of the MTV works, and economic development of the city, the law court finally decided that the standard of compensation is RMB 1,000 per MTV.