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Does the Provision of Digitized Karaoke Machines which Contain Unauthorized Songs for Unspecified Persons to Request and Sing Infringe Copyright?
Commonly seen in the market, business owners' blatant loading of their digitized karaoke machines with unauthorized songs and the provision thereof for consumers to pay to sing along with often results in frequent disputes over copyright infringement. Two recent judgments (2018 Xing Zhi Shang Yi Zi No. 55 and 2018 Min Zhe Su Zi No. 73) rendered by the Intellectual Property Court (IPC) on December 26, 2018 and January 31, 2019, respectively, expressed the following opinions as to what kind of copyright owners' rights and powers upon which such exploitation infringes:
1. Distribution Right
Article 28-1, Paragraph 1 of the Copyright Act stipulates that "except as otherwise provided in this Act, authors of works have the exclusive right to distribute their works through transfer of ownership." The plaintiff (i.e., the copyright owner) of the aforesaid judgment of 2018 Min Zhe Su Zi No. 73 filed a lawsuit against and claimed that the defendant providing the digitized karaoke machines containing unauthorized songs for unspecified consumers to request and sing along with had infringed the distribution right of musical works owned by the copyright owner; however, the IPC did not accept the plaintiff's claim. The IPC held that the copyright infringement due to the distribution of works must be through the transfer of ownership. If the public is only allowed to see or hear the work without a transfer of the works’ ownership, it does not constitute copyright infringement except in cases where it infringes other copyright rights such as public performance and public transmission. In the aforesaid lawsuit, as the defendant's such act as providing the digitized karaoke machines containing unauthorized songs did not involve any transfer of ownership thereof, naturally it cannot be regarded as constituting any copyright infringement due to distribution of works. Since the plaintiff seemed not to claim that its other rights were infringed, the court did not further consider its claim the judgment therein.
2. Public Broadcast Right
It is clearly stipulated in Subparagraph 7, Paragraph 1, Article 3 and Paragraph 1, Article 24 of the Copyright Act, respectively, "'Public broadcast' means to communicate to the public the content of a work through sounds or images by means of transmission of information by a broadcasting system of wire, wireless or other equipment, where such communication is for the purpose of direct listening reception or viewing reception by the public. This includes any communication, by transmission of information via a broadcasting system of wire, wireless or other equipment, to the public of an original broadcast of sounds or images by any person other than the original broadcaster." and "Except as otherwise provided in this Act, authors have the exclusive right to publicly broadcast their works." In the aforesaid judgment of 2018 Xing Zhi Shang Yi Zi No. 55, the IPC expressed that the defendant in said lawsuit merely provided the digitized karaoke machines containing unauthorized songs without transmitting information via a broadcasting system of wire, wireless or other equipment, to the public, which did not align with the requisite elements of "Public Broadcast". Naturally, it did not constitute an infringement of public broadcast right.
3. Public Performance Right
Clearly stipulated in Article 3, Paragraph 1, Subparagraph 9, and Article 26, Paragraph 1 of the Copyright Act are, respectively, "'Public performance' means to act, dance, sing, play a musical instrument, or use other means to communicate the content of a work to a public that is present at the scene. This includes any communication to the public of an original broadcast of sounds or images through loudspeakers or other equipment." and "Except as otherwise provided in this Act, authors of oral and literary, musical and dramatic/choreographic works have the exclusive right to publicly perform their works." If the defendant had requested the unauthorized musical works contained in the digitized karaoke machines and sung publicly in the way to communicate the content of a work to a public that is present at the scene, it is indeed appropriate to be regarded as an infringement of the public performance right.
However, in the aforesaid judgment of 2018 Xing Zhi Shang Yi Zi No. 55, the prosecutor did not prove that the defendant had any public performance of said musical works; even if the market surveyor of complainant personally went to a karaoke establishment, requested the songs according to the numbers listed in the book of song titles at the scene and sang them subsequently, taking photos of the entire process as evidence, but the court, however, still held that "the complainant market surveyor's requesting and singing of said musical works for the purpose of evidence collection was apparently agreed or authorized by the complainant, which is difficult to regard as an infringement of copyright. The act of requesting and singing said musical works merely proved that the defendant's digitized karaoke machine did contain the said musical works, but it proved nothing about the facts on other consumers' actual requesting and singing said musical works and their public performance. Without loss of generality, typical digitized karaoke machines may contain tens of hundreds of songs, while only 12 of them whose property right of said musical works is owned by the complainant, which takes a very small proportion and the probability of requesting is quite rare. As a result, it is still difficult to presume that the aforesaid songs indeed had been publicly performed by others based on the fact that said musical works contained in said karaoke establishment's digitized karaoke machine."
According to the above IPC opinions, we can understand that the provision of digitized karaoke machines which contain unauthorized songs for unspecified persons to request and sing along with infringes neither the distribution right nor the public broadcast right unless there is a transmission of information via a broadcasting system of wire, wireless or other equipment, to the public. Intending to claim that the public performance right has been infringed, the right owner or the prosecutor must provide specific evidence to prove that an unauthorized person requested said musical works contained in said digitized karaoke machines and sang them publicly.