Hotspot · Analysis

Searching for "Lost" Children's Rhymes in Intellectual Property Protection

On November 26, 2023, the Phoenix Network Action Alliance 2023 Public Welfare Awards Ceremony was held in Beijing, and the twelve major public welfare awards of the year were announced. Among them, the "Search for Rumors Plan" won the "Top Ten Public Welfare Creativity Awards of the Year". The "Search for Folk Songs Plan" is a public art project initiated by musician Xiaohe in 2018. Over the course of five years, from urban to rural areas, it has traveled through multiple places, visited over 1000 elderly people, and collected over 600 samples of folk music. The aim is to find old nursery rhymes and make them sound new in modern times.

In different regions and childhood, there must always be more than one nursery rhyme echoing in our ears. So, how should we protect the intellectual property rights of these childhood memories?

Children's rhymes belong to a type of folk literature, and Article 6 of the Copyright Law of the People's Republic of China (hereinafter referred to as the "Copyright Law") stipulates that "the copyright protection measures for folk literature and art works shall be separately formulated by the State Council.". As early as 2014, the National Copyright Administration drafted the "Regulations on the Protection of Copyright in Folk Literature and Art Works (Draft for Soliciting Opinions)", but due to excessive questioning, it has not yet been introduced, resulting in no specific laws and regulations to protect the intellectual property rights of folk literature works. Therefore, today we will start from the perspective of traditional intellectual property protection and further explore the issue of protecting the copyright of nursery rhymes.

In terms of rights acquisition, nursery rhymes themselves have copyright, but in the process of dissemination, the author often becomes anonymous due to inadequate protection of rights. In situations where no one claims rights, they sometimes become public resources. According to the current laws and regulations in our country, copyright includes personal rights and property rights, and personal rights also include publishing rights, authorship rights, modification rights, and protection of the integrity of the work. The copyright protection period system mainly targets publishing rights and property rights, specifically: when the work is a natural person, the copyright protection period adopts the "death from death algorithm", which ends 50 years after the author's death; When a work is organized by a legal or non legal entity, the copyright protection period (excluding the right of authorship) adopts the "publication from publication algorithm", which ends 50 years after the first publication. Unpublished works within 50 years after the completion of the work are no longer protected; When the protection period expires, the work automatically enters the public domain.

During the process of singing, the new generation of musicians have made new interpretations and adaptations of nursery rhymes, often resulting in new copyrights. If it is a nursery rhyme that has already entered the public domain, through creative processing, adaptation, and other means, it will produce new works, which also promotes the updating, creation, and dissemination of works. However, not all nursery rhymes are ownerless. According to Article 13 of the Copyright Law, "The copyright of a work produced by adapting, translating, annotating, or organizing an existing work shall be enjoyed by the person who adapted, translated, annotating, or organizing it, but the exercise of copyright shall not infringe upon the copyright of the original work." Musicians also need to be careful not to infringe upon the copyright of the original work when adapting nursery rhymes. Therefore, it is recommended to further understand and examine the sources of rights of nursery rhymes during interpretation or secondary creation, in order to avoid being in a passive situation of infringing on the intellectual property rights of others.

In terms of copyright protection, reference can be made to the infringement determination of folk song copyright in the Civil Judgment No. (2021) Jinminzhong 249 issued by the Tianjin Higher People's Court in 2022. The case sparked controversy over a folk song called "Mayila" that has been passed down from generation to generation among Kazakh and other ethnic groups in Xinjiang, Qinghai, and other regions. In fact, the intellectual property protection of folk songs also has great reference significance for the field of intellectual property protection of children's songs. The judgment holds that "any citizen or organization can freely use, adapt or organize it in an appropriate way." On the one hand, by analyzing the authorship, composition, and notation of Wang Luobin's compiled version of "Mayila," it is comprehensively determined that the "melody part" of Wang Luobin's notation version of "Mayila" has innovative new expressions and belongs to the interpretation work in the sense of copyright law, And it is recognized that Wang Luobin is the copyright owner of the "melody part" of this version of "Mayila"; However, the lyrics of Wang Luobin's version of "Mayila" show that the signature is not Wang Luobin himself, but a third party outside the case. The judgment ultimately determines that Wang Luobin does not enjoy copyright to the lyrics of this version of "Mayila"; On the other hand, the determination that Wang Luobin is the copyright owner of the "melody part" of "Mayila" does not mean that other musicians performing "Mayila" constitute infringement. This judgment, by comparing the melody, rhythm, and singing effects of the two versions, ultimately determines that one of the defendants in this case, Gao Tianhe, did not infringe on the information network dissemination rights of Wang Luobin's version of "Mayila".

From the aforementioned cases, it can be seen that judicial practice often considers multiple dimensions and details when determining whether it constitutes copyright infringement. Therefore, from the perspective of protecting the legitimate rights of musicians, it is recommended to do a good job of rights preservation at the source. Specifically, it is recommended to promptly register the copyright of works that one enjoys and retain the registration certificate. The reason is that although the registration does not affect the actual enjoyment of copyright by the rights holder, if the rights holder completes copyright registration in advance, it is easier to prove their rights in case of disputes.

For copyright owners who have already registered their rights, if they discover that their rights have actually been or may be infringed upon by others in the future, it is recommended to promptly preserve evidence through notarization and other forms, and protect their own rights through judicial procedures.

In fact, we also hope to see that, on the basis of protecting the rights of traditional children's songs, we also encourage the new generation of musicians and singers to innovate and develop, integrate modern elements, make children's songs more contemporary, and attract the attention of different people in different eras.

Industry · New Policies

Judicial Proposal on Strengthening Intellectual Property Protection Services and Promoting High Quality Development of the Film Industry

On November 3, 2023, the Supreme People's Court issued the Judicial Recommendation on Strengthening Intellectual Property Protection Services and Promoting High quality Development of the Film Industry, and introduced relevant information at the first Intellectual Property Protection Forum of the 2023 Golden Rooster and Hundred Flowers Film Festival.

In response to the current characteristics and causes of intellectual property disputes involving movies, the Supreme People's Court has put forward four suggestions. One is to accelerate the high-quality development of the film industry on the track of the rule of law. The second is to strengthen copyright awareness, strictly implement the Copyright Law, and strengthen the protection of film copyright and rights related to copyright. Strengthen respect for the rights of screenwriters, directors, cinematographers, songwriters, and performers throughout the industry, standardize the scope and order of attribution, unify the title of film copyright owners, and accurately and clearly express the ownership of film copyright. The third is to make good use of technological measures, innovate licensing mechanisms, actively adopt new technologies such as blockchain and digital watermarking, and improve the authorization and licensing mechanism for film works in multiple channels and formats. Fourthly, actively and widely promote intellectual property protection in the dissemination of film works.

Eight typical cases of intellectual property protection in movies released by the Supreme People's Court

On November 3rd, the website of the Supreme People's Court announced a batch of typical cases of film intellectual property protection. Typical cases include both criminal and civil cases, involving the theft and dissemination of cinema films, protection of the integrity of works, adaptation rights, information network dissemination rights, reasonable use of copyright, and protection of trade secrets. The table of contents is as follows:

1. Cases of Copyright Infringement by Ma Mouyu, Ma Mousong, and Others [Criminal Judgment of Yangzhou Intermediate People's Court, Jiangsu Province (2020) Su 10 Xing Chu 11]

2. Case of Liang Mouping's Infringement of Copyright [Criminal Judgment of Shanghai Third Intermediate People's Court (2021) Hu 03 Xing Chu 101]

3. Copyright infringement dispute case between Shanghai Fine Arts Film Studio Co., Ltd. and Chongqing Cloud Media Information Technology Co., Ltd. [Chongqing Fifth Intermediate People's Court (2019) Yu 05 Min Chu 3828 Civil Judgment]

4. Copyright ownership and infringement dispute case between Yu Mouzhu and Zhejiang Dongyang Meila Media Co., Ltd. [Civil Judgment of Chengdu Intermediate People's Court, Sichuan Province (2018) Chuan 01 Min Chu 1122]

5. Dispute case between Beijing iQiyi Technology Co., Ltd. and Shanghai Qiaojiaren Cultural Media Co., Ltd. over infringement of the right to online dissemination of work information [Beijing Intellectual Property Court (2021) Jing 73 Min Zhong 2496 Civil Judgment]

6. Case of Zhejiang Shenghe Network Technology Co., Ltd. and Legendary IP Co., Ltd. Confirming Non Infringement of Copyright Dispute [Hangzhou Internet Court (2021) Zhe0192 Min Chu 10369 Civil Judgment]

7. Dispute case between Xinli Media Group Co., Ltd. and Beijing Paihua Cultural Media Co., Ltd. over infringement of trade secrets [Civil Judgment of Chaoyang District People's Court of Beijing (2017) Jing 0105 Min Chu 68514]

8. Case of Unfair Competition Dispute between Xinghui Overseas Co., Ltd. and Guangzhou Zhengkai Cultural Communication Co., Ltd. [Guangzhou Intellectual Property Court (2020) Yue 73 Min Zhong 2289 Civil Judgment]