On June 2, 2021, Beijing Aiqiyi Technology Co., Ltd. sued Hunan Cable Changsha Network Co., Ltd. for infringement of the information network dissemination right of the film and television drama "Flower Thousand Bones". The second trial judgment ((2021) Jing 73 Min Zhong No. 999) came into effect. The court of first instance and second instance both found that the act of Changsha Cable to broadcast the film and television drama "Flower Thousand Bones" to the public in the "playback" zone of Hunan Changsha Cable TV platform infringed on iQiyi's right to information network communication. Some people feel very puzzled that cable TV playback stations have already obtained the right to broadcast movies and TV dramas. How can they still infringe upon the rights? This case involves issues related to the distribution and broadcast authorization of film and television dramas.

 

The distribution and broadcast authorization of film and television plays is an important link in the film and television industry, and is a bridge connecting the production and broadcast of film and television plays. When it comes to distribution, it's inevitable to mention distribution rights, but many people, including film and television practitioners, are confused about what distribution rights mean. Is the distribution right transferred when a movie or television drama is released to a television station, cinema, or online platform for playback after shooting? If you are filming an online drama, what are the risks of signing an information network transmission rights transfer agreement with the network platform that requires the transfer of broadcasting rights together? What are the meanings of distribution rights, broadcasting rights, screening rights, and information network dissemination rights often mentioned in the industry? With the latest revision of the Copyright Law coming into effect on June 1, 2021, the author discusses and analyzes the above issues in combination with legal provisions and film and television practice as follows.

 

1、 Distribution Rights and Film and Television Industry Distribution

 

Article 10 (6) of the Copyright Law (all the copyright laws cited herein are the latest version that came into effect on June 1, 2021) stipulates that "the right of distribution refers to the right to provide the original or reproduction of a work to the public by way of sale or gift.". After reading this article, you will find that the distribution rights under the Copyright Law are not completely consistent with the conventional concept of "distribution" in the film and television industry. The public does not obtain the original or copy of the film and television drama when watching it on television, cinema, or online platform. The rights obtained by a television station, cinema, or online platform from the copyright owner of the film and television drama in order to broadcast the film and television drama to the public are not distribution rights.

 

Yes, the distribution right of the Copyright Law is more based on a definition in the context of book publishing. The copyright owner of a book authorizes the distribution right of the book to the publishing house, which publishes and distributes the book, and sells the book to the public. Of course, in the past, it was relatively popular to make movies and TV dramas into VCD/DVD for sale, which was also a way to achieve the distribution rights of movies and TV dramas.

 

"Distribution" in the film and television industry is not a legally accurate concept and is relatively vague. It can generally be understood as the sale of broadcasting rights for film and television dramas. The copyright owners (issuers) of film and television dramas sign distribution agreements with different broadcast platforms, authorizing them to play film and television dramas, and the types of copyright involved are also different, which is particularly prone to misunderstanding and confusion.

 

2、 Projection Rights - Cinemas Play Movies

 

Article 10 (10) of the Copyright Law stipulates: "The right of projection refers to the right to publicly reproduce art, photography, films, and works created by similar methods of cinematography through technical equipment such as projectors and slide projectors."

 

The copyright owner of a film (a producer in the copyright law, commonly referred to as the production unit in the industry) signs a film licensing agreement with the cinema (including cinemas and cinema lines) himself or commissions a distribution company to license the film to the cinema for playback, and obtains licensing fees. What is transferred is the screening right of the film. Playing movies in cinemas is the most classic form of expression of screening rights, and it is also the core distribution channel for movies.

 

3、 Broadcasting rights - TV stations broadcast movies and TV dramas

 

Article 10 (11) of the Copyright Law stipulates: "The right to publicly disseminate or relay a work by wire or wireless means, as well as the right to disseminate a broadcast work to the public through loudspeakers or other similar means that transmit symbols, sounds, and images, but does not include the rights specified in item 12 of this paragraph."

 

Television dramas broadcast by television stations are a relatively conventional distribution method for television dramas, but there is little awareness in the industry that television stations exercise the broadcasting right to broadcast television dramas. The term "television broadcasting right" is often used in film and television practice, and even some professional lawyers often use it in contracts and court judgments. In fact, the "television broadcasting right" is not standardized. The copyright owner of a television drama authorizes the television drama to be broadcast by a television station, and the authorized license is the broadcasting right of the television drama.

 

In addition, when the copyright owner of a movie sells the movie to a movie channel or other television channel, he also transfers the broadcasting rights of the movie.

 

4、 The right to disseminate information through the network - Play movies and TV dramas on the network platform

 

Article 10 (12) of the Copyright Law stipulates: "The right to disseminate information through networks, that is, the right to provide it to the public through wired or wireless means, so that the public can obtain a work at a time and place of their personal choice.".

 

With the rise of the Internet and online drama, the right to disseminate information online has entered the public's vision. From the definition of the Copyright Law, there are many similarities between the right to information network communication and the right to broadcast, both of which are the transmission of works by wired or wireless means. However, the key element of the right to information network communication is "the right to enable the public to obtain works at a time and place of their personal choice.". As long as it has this key element, whether wired or wireless, it belongs to the right of information network transmission; What does not have this key element is the scope of broadcasting rights.

 

So, Article 10 (11) of the new Copyright Law, which came into effect on June 1, 2021, is amended from "the right to broadcast, that is, the right to publicly broadcast or disseminate works by wireless means, to disseminate broadcast works to the public by wire transmission or retransmission, and to disseminate broadcast works to the public through loudspeakers or other similar tools that transmit symbols, sounds, and images" to: "The right to broadcast, that is, the right to publicly disseminate or retransmit a work through wired or wireless means, as well as the right to disseminate a broadcast work to the public through loudspeakers or other similar means of transmitting symbols, sounds, and images, but does not include the rights specified in item 12 of this paragraph." The author believes that this definition is more logical.

 

It is undeniable that the definition of the right to information network dissemination in the Copyright Law is a relatively general definition, which seems relatively abstract. Each major network platform will provide a more detailed definition of information network communication rights based on their actual situation when signing the "Information Network Communication Rights License Agreement" with film and television copyright owners. The author has compiled descriptions of the definition of information network communication rights from several major platforms, among which the most commonly used ones are:

 

"Information network dissemination right: refers to the right to provide programs to the public in a wired or wireless manner, enabling the public to obtain works at a time and place selected by themselves. The specific forms of use include, but are not limited to, various existing forms of use such as online on-demand, live streaming, rotation, broadcast, download, IPTV, digital TV, and other forms of use that arise during the licensing period,", The forms of receiving terminals and display terminals for specific users include but are not limited to mobile phones, computers, tablets, set-top boxes, MPEG4 players, car players, aviation players, high-speed railway train players, Internet televisions, VR, movie bars, wearable devices, projection devices, and other existing receiving terminals or display terminals, as well as other new receiving terminals or display terminals in the future. Communication networks include but are not limited to the Internet 3G/4G/5G/6G communication networks, local area networks, etc.

 

Information network communication rights and broadcasting rights are not only similar in definition, but also prone to confusion in practice. Copyright owners of film and television dramas should pay attention to distinguishing between the two in the process of film and television drama distribution. For example, most TV stations now have their own network platforms. After obtaining the broadcasting rights for TV dramas, if they broadcast TV dramas on their own network platforms, so that the public can watch TV dramas at the time and place they choose, they must also obtain the information network dissemination rights for the TV dramas. As mentioned above, in the case of iQiYi suing Changsha Cable for infringing the information network communication right of the film and television drama "Flower Thousand Bones", the court ruled that although Changsha Cable played the film and television drama "Flower Thousand Bones" to the public in the so-called "playback" zone, it also claimed that the act of providing the involved works belonged to the opinion of "review" service, and the exercise was broadcast right, but according to the infringement evidence collection, The platform involved in the case provides an online on-demand service for the full episode of "Flower Qiangu", enabling the public to watch "Flower Qiangu" at a time and place selected by themselves. Therefore, the court determined that Changsha Cable constituted an infringement of the right to information network dissemination and required compensation for the economic losses of iQiyi.

 

In another case, if a film and television production company is restricted by its film and television drama adaptation rights, it can only shoot online dramas and only play them on online platforms. If the online platform requires that the broadcasting rights be transferred along with the transfer of information network dissemination rights, the film and television production company cannot agree to the request.

 

5、 New Media Broadcasting Right: Expansion of Information Network Communication Right

 

After years of legal experience in the film and television industry, the author has found that in recent years, when online platforms purchase the broadcast rights of film and television dramas, they always fail to meet the scope of information network communication rights. Therefore, a new concept has emerged in the industry - "new media broadcast rights", which has been expanded on the basis of information network communication rights. From the name of this right, we can see that the corresponding concept of "new media broadcasting right" is "traditional media broadcasting right". What specifically do the two rights refer to?

 

"Traditional media broadcasting right" is generally defined as: "The right to provide works to the public through radio, television stations, traditional cinemas and cinemas (excluding on-demand cinemas and cinemas), and audio-visual products (such as tapes, CDs, DVDs, Blu-ray, etc.). The term" traditional media broadcasting right "is more easily understood and mainly includes the broadcasting right of radio stations and television stations to broadcast movies and television dramas previously described." The right to show films in traditional cinemas and cinemas, and the right to distribute audio-visual products.

 

"New media broadcasting rights" are generally defined as: "The right to provide works, performances, or audio and video products to the public through various information network media, so that the public can obtain the works, performances, or audio and video products at the time and/or location of their personal choice, as well as the right to broadcast the works to the public through the use methods and receiving terminals listed in this agreement."

 

From this definition, "new media broadcasting right" is closer to "information network dissemination right". However, when purchasing the rights to broadcast movies and TV dramas, the platform will try to expand its scope of rights, expanding the connotation and extension of "new media broadcasting rights" from the following aspects:

 

1. Agree on the specific usage of "new media broadcasting rights"

 

The usage methods of "new media playback right" include but are not limited to various existing usage methods such as on-demand, live streaming, rotation, scheduled playback, real-time playback/rebroadcasting, download, P2P, mobile value-added services, and other new usage methods emerging within the authorization period.

 

2. The receiving terminal that has agreed on the "new media playback right"

 

Common receiving terminals for "new media broadcasting rights" include, but are not limited to, desktop and portable computers, iPads and tablets, mobile phones and other mobile communication devices, set-top boxes, wearable devices, projection devices, VR (virtual reality) devices, Internet TV/OTT terminals, vehicle/aircraft/ship and other vehicle broadcasting devices, IPTV, digital TV, smart TV, on-demand theaters, and on-demand cinema lines Various programs and software or systems, etc.

 

3. Information network media with agreed "new media broadcasting rights"

 

The information network media of "new media broadcasting rights" include, but are not limited to, existing receiving terminals such as the Internet, radio and television networks, fixed and mobile communication networks such as 3G/4G/5G, local area networks open to the public, and other receiving terminals emerging within the authorization period.

 

It can be seen that the "right to broadcast new media" is actually a collection of multiple rights, not a simple "right to disseminate information online". It may include multiple rights such as the right to reproduce, distribute, show, broadcast, and disseminate information online, as stipulated in Article 10 of the Copyright Law. Therefore, when signing licensing agreements with various broadcast platforms, investors and copyright owners of film and television dramas need to carefully check the definition and scope of authorization rights, ensure that the scope of authorization does not conflict with other existing authorization channels, and ensure that the scope of authorization does not exceed the scope of their actual rights.

 

(This article is translated by software translator for reference only.)