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Copyright Infringement by Streaming Songs via Cloud Karaoke Machines
Cloud karaoke machines have become popular these years. They connect certain cloud music databases via the Internet, from which the songs chosen by consumers are transmitted to play on the machines. Since not all of these songs have been licensed by right holders for play in Taiwan, several infringement lawsuits have been brought to the courts.
The Intellectual Property and Commercial Court rendered a civil judgment (Case No. Min-Zhu-Su-Shang-1), holding that when a KTV operator (the defendant) places cloud karaoke machines in KTV boxes for non-specific consumers to choose songs to sing, the MVs (audio-visual works) of the songs would be displayed on the screens of the machines, which constitutes the public presentation of the audio-visual works. As the plaintiff enjoys the exclusive right to publicly present the audio-visual works in Taiwan, it would face a high risk of such right being infringed from time to time if the machines are made available for consumers to choose songs to sign. Upon the plaintiff's petition, the court thus issued an injunction order against the defendant to prevent the defendant's infringement by prohibiting him from publicly presenting the audio-visual works in Taiwan within the period in which the plaintiff has been granted the exclusive right to publicly present the audio-visual works.
The defendant argued that the use of works via the cloud karaoke machines is simply an online streaming of the works, which is a new right of "onward communication to the public" under the not-yet-enacted draft amendment to the Copyright Act; and since the machines can also connect to various platforms made available to the general public, the plaintiff cannot prove that any specific audio-visual works were infringed when they were displayed on the machines. In response to such arguments, the court holds as follows:
1. When the public presentation right was stipulated under the Copyright Act in 1985, there was no online streaming of works. Nonetheless, according to the definition of public presentation under Item 8, Paragraph 1, Article 3 of the current Copyright Act, so long as there is a simultaneous communication of the content of a work to the public "at the place of the presentation or at a specified place outside the place of the presentation" using "single or multiple audiovisual devices or other image transmission methods", such communication constitutes the public presentation of the work, regardless of whether the images are stored in the presentation machines or presented via the online streaming. The use of works via a cloud karaoke machine falls within the definition of public presentation under the current Copyright Act.
2. The defendant's claim is groundless by arguing that the current right of public presentation does not cover the communication of a streamed work as the latter will only fall within the definition of the right of onward communication to the public under the draft amendment to the Copyright Act. The court points out that the draft amendment to the Copyright Act stipulates the new right of "onward communication to the public" under Article 26-2 and defines such right as "simultaneous communication to the public, via screens, broadcasting systems or other machines or equipment, of the content of a work that has been publicly broadcast or transmitted". In addition, the draft amendment revises the definition of "public presentation" under item 7 of the same paragraph and article, as "communication of the content of a work to the public via audiovisual devices or other image transmission methods, which does not include onward communication to the public". The legislation reasons of the draft amendment to Article 3 of the Copyright Act clearly state that the aforesaid amendments are due to the partial overlaps between the rights of public presentation and onward communication to the public (such as the presentation of a TV program that has been received by a store and mall to the public at the store or mall via an onsite TV screen).
3. The defendant's claim that the use of the works via the cloud karaoke machines constitutes the "onward communication to the public" is groundless as well. The cloud karaoke machines connect to online music databases, which are not freely accessible by the general public. The MVs therein can be accessed only via the cloud karaoke machines and thus are different from the content available on the audio-visual platforms accessible by the general public. Thus, the use of the audio-visual works via the cloud karaoke machines is different from the onward communication to the public under the draft amendment to the Copyright Act, as the latter refers to the simultaneous communication to the public, via screens, broadcasting systems or other machines or equipment, of the works that "have been publicly broadcast" or "have been publicly transmitted".