Proceedings in China's first-ever lawsuit over copyright infringement for background music allegedly being played for profit-making purposes began Wednesday in a Beijing court.

Chang'an Department Store, a major retail outlet in the capital, has been charged for the infringement by the Music Copyright Society of China.

The lawsuit court session started Wednesday at the Beijing No 1 Intermediate People's Court. This case, the first of its kind since the country's Copyright Law was amended in 2001, is drawing attention nationwide.

In its indictment, the plaintiff is seeking a compensation of 228,100 yuan (US$27,600) for the accused store's use of background music, whose copyright is managed by the society, without being authorized and paying fees to the society. No judgment was made yesterday in the case, and an announcement for the next session is yet to be made public.

The Music Copyright Society of China is the country's only officially recognized organization for music copyright administration.

Background music played at department stores or hotels - also called 'muzak' - received legal protection in 2001 under revisions to the Copyright Law. The law states that both live and mechanical performances enjoy the same rights.

In the original version of the law, which was adopted in 1990, the rights in performance were only related with live performances - displaying musical works through the performances of the musicians or technical equipment.

At Wednesday's hearing, the plaintiffs in the case said they had recorded three hours worth of background music for the store in September of last year as evidence. The music was broadcast during the store's business hours.

"Only in three hours, 21 songs were played whose rights had been entrusted to the society for administrative purposes," Wang Bin, the lawyer representing the plaintiff said Wednesday.

Wang added that this is only a small part of the works played by the accused without authorization.

The association has now administered copyrights for over 14 million musical works by 2,500 members.

"But the evidence could fully support the fact that the accused has been using the musical works illegally for a rather long time, in large amounts, with the purpose of making profits," he said.

The evidence has been preserved and notarized, according to the lawyer.

The society issued a lawyer's letter to the store last April, pointing out that the store is violating the plaintiff's rights.

"But the accused paid no heed to our legal appeal and continued as before," Wang said.

Up to now, 23 department stores in Beijing, including the Oriental Plaza and the Pacific Department Store, have paid fees to the society for using the songs under their administration, according to sources.

Department stores with different size are charged with different standards by the society. The usual fee is 254 fen (31 US cents) per square meter per year for a department store of 10,000-20,000 square meters to use the music, the society said.

The plaintiffs expressed their willingness to accept the conciliation initiated by the court, but Chang'an Department Store refused the settlement Wednesday.

"The society is only a non-governmental organization, not a governmental authority, so it has no right to collect mandatory fees," Zhang Guoying, general manager of the store said Wednesday.

Zhang believed that how to charge the fees should be decided by the State Council. And there is no legal proof now on the issue.

"Meanwhile, the broadcasting of background music in our store is aimed at creating a good shopping environment for consumers, but not to make profits," she said.

"In fact, the copyright owners of the songs benefit from this as their works were made more widely known through us."

She also denied the existence of the plaintiff's letter, saying "we have never had any form of communications with the plaintiff before the court session."

Zhang also said that most of the stores in Beijing which paid fees for background music are foreign ones, as "State-owned units still need some time to get familiar with this."

After ceasing playing of the background music last month, sales have not been influenced at all, she added.

(China Daily February 5, 2004)
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