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Does Selecting and Playing Unauthorized Songs on a Jukebox for the Purpose of Evidence Collection Constitute Public Performance?
Jukeboxes are fairly common fixtures of dining and drinking establishments that allow customers to select songs to be played. If the musical works loaded onto the jukeboxes are not authorized by the copyright owners, the act of making the jukeboxes available to unspecified persons may infringe the public performance rights of the musical works. In practice, in order to prove that a musical work has been selected and played on a jukebox, copyright owners would often send staff to a business's premises to select said musical work to be played, and collect evidence via photography, sound recording, video recording and the like. However, 2020 Min Zhu Shang Yi Zi No. 23 Civil Judgment rendered by the Taiwan Intellectual Property Court on January 28, 2021 ruled against that public performance is constituted when it is the copyright owner or their agent who carries out the action of selecting and playing unauthorized songs on the jukebox for the purpose of evidence collection.
In this case, the plaintiff is the exclusive licensee of seven songs in dispute. According to the video recording and screenshot made in the defendant's dining and drinking establishments, the songs in dispute were loaded onto a jukebox in an unauthorized manner and performed publically by those present. Regarding the video recording, however, the plaintiff only claimed that the information thereof was provided by an anonymous enthusiast. However, this claim was belied by a voiceover at the beginning of the video recording by the person doing the filming: “on April 23, 2018, I’m now in Jin Xiang Jin (the name of the defendant's establishment), and I start the video recording….” Obviously, the anonymous enthusiast, when confirming that people were singing the songs in dispute via the jukebox located in the defendant's dining and drinking establishment, or that people were going to do so, would then enter the specific booth with video equipment and record the scene of the songs being played by the jukebox and sung by the patrons. According to the timestamps on the video recording, the time taken to record the performance of the seven songs in dispute was around 33 minutes, from 11’09” to 44’15”. Considering that songs are typically around 3 to 5 minutes in length, it defies credibility to suppose that all seven songs could have been played consecutively unless they had been intentionally selected for purpose of evidence collection. Given that thousands or even tens of thousands of songs may be loaded onto a jukebox, how could the anonymous enthusiast have known that the songs in dispute were loaded onto the jukebox? How could the enthusiast select and play them consecutively while shooting the songs being sung within 33 minutes? Common sense would dictate that the anonymous enthusiast obviously knew the seven songs managed by the plaintiff quite well. It should be the plaintiff, not general consumers, who carried out the action on their own or commissioned others to select and play the seven songs in dispute on the jukebox for the purpose of evidence collection.
In the aforesaid judgment, the Taiwan Intellectual Property Court stated,
The jukebox placed in the defendant’s dining and drinking establishments is certainly loaded with the songs in dispute, and is available for unspecified customers to sing karaoke. However, this action merely puts the songs in dispute in a state where customers can choose and play them on the jukebox, not an act of public performance regulated by the Copyright Act. Moreover, as the plaintiff commissioned a certain anonymous enthusiast to choose and play the songs in dispute consecutively on the jukebox for the purpose of evidence collection, the plaintiff already agreed or authorized the anonymous enthusiast, not an uninformed consumer, to choose and play the songs in dispute on the jukebox. That is to say, as the plaintiff failed to prove that the defendant communicated the songs in dispute to the public by the methods stipulated in Article 3, Paragraph 1, Subparagraph 9 of the Copyright Act and infringed the plaintiff’s economic rights of the songs in dispute via public performance, the plaintiff’s assertion of the defendant’s infringement is void and not adoptable.