Unauthorized dissemination of movie soundtracks constitutes infringement
Shanghai Kuanyu Digital Technology Co., the operator of online content platform Bilibili, was sued by Youku Information Technology (Beijing) Co. at the Beijing Internet Court (BIC) for infringement of information network dissemination rights because a Bilibili user uploaded audio from a box office hit Dying to Survive on the website.
The BIC recently gave its judgment of the first instance, concluding that Kuanyu should've been aware of its user's infringement, thus committing contributory infringement.
Plaintiff: the defendant provided playback and download services of the soundtrack of the film without permission, constituting infringement of information network dissemination rights.
According to the plaintiff, it owned the film's exclusive right of communication through information networks. The user of the defendant's website uploaded the film's soundtrack to Bilibili's film and TV clips section and edited the title to"[1080p] Dying to Survive original soundtrack".
Claiming that the defendant constituted infringement of information network dissemination rights by providing playing and downloading services of the involved film's whole original soundtrack without permission, the plaintiff appealed to the BIC for economic losses of 300,000 yuan ($46,971) and other reasonable expenses of 20,000 yuan.
Defendant: film soundtracks on their own can't constitute substantial replacement of the work. There were no situations the defendant knew about or should've known, thus contributory infringement couldn't stand.
The defendant argued that the soundtrack itself could not constitute a substantial and complete expression of the work, the author's ideas and perceptions on the visuals, due to the absence of images. Its very limited format and content did not constitute substantial damages to the copyright owner. Moreover, audio like this would be hard for the defendant to notice as a piece of work and thus pay due attention.
In addition, the defendant was an online storage service provider, while the soundtrack was uploaded by an online user. The defendant didn't or shouldn't have known about the user's copyright infringement behavior via its service, and thus didn't commit contributory infringement, and has no obvious fault. Therefore, the defendant should not bear the tort liability.
Focus of dispute:
1. Is uploading the soundtrack the same as providing the film involved?
2. Did the defendant commit contributory infringement?
After the hearing, the court concluded that:
1. The audio involved in the case was an important part of the original expression of the involved film.
The defendant's behavior is an act of providing the involved film.
The related stipulations in the Copyright Law on works should not be simply taken as a complete piece of work, as the Copyright Law protects the originality of the work. As long as originality is involved, information network dissemination rights will apply.
Therefore, to determine whether there was an act of providing works, the key was to investigate whether the audio involved used the original expression of the film.
A cinematic work refers to a work produced on a certain medium, consisting of a series of pictures with or without sound, and projected with the help of appropriate devices or transmitted in other ways. Therefore, both audio and images are organic parts of the film that bear the film's original expression.
In this case, the audio involved is the complete soundtrack of the involved film, an indispensable part that is comprised of creational outcomes of multiple phases such as directing, recording and editing. It is an important part of the original expression of the film and not a creative element in the public domain.
Moreover, the soundtrack contains a variety of sound elements such as slang, music and sound effects, which are set at certain points of the film instead of standing on their own. That is de facto a way of disseminating the film on an information network.
In addition, the provision of the complete soundtrack caters to the diversified needs of current online users in accessing the film, and constitutes a substantial replacement to the traditional form of dissemination which is soundtrack plus pictures.
The unauthorized dissemination will inevitably cause substantial damage to the interests of the film. Therefore, the accused behavior falls into the jurisdiction of information network dissemination rights of the film.
2. The defendant constitutes a contributory infringement.
Industry practices and common sense tell us that individual online users don't generally obtain rights to professionally-made film works. The right holder generally won't allow individuals to upload its works online to share with the public. In this case, the audio involved is the complete soundtrack of a famous film. The uploading time was after the film was on the cinema and before it officially landed Youku – a peak time of viewership for the film. Therefore, the defendant should have known that the provision of the soundtrack was unauthorized.
The defendant set categorizing and searching functions on its storage space to ensure smooth business operation and provide convenience to its users in uploading, browsing and watching works online. The defendant bears the duty of care at the same time, especially in high infringement risk areas like the film and TV clips section of its site and should provide restrictions on aspects such as file sizes, duration and titles. In this case, the audio was about two hours long, with a title including the name of the involved film, and stayed at the top of the search results for the film’s name. It is therefore highly perceivable in terms of duration, title and location. The defendant should have known the existence of the audio on its website and failed its duty of care requirements.
In conclusion, the defendant should have known its user's infringement behavior on its website and constituted a contributory infringement.
Judgment of the first instance:
Within 10 days of the judgment, Kuanyu was ordered to pay 60,000 yuan as economic losses and 5,000 yuan as reasonable expenses to the plaintiff Youku.
In order to meet the diversified needs of viewers, new ways of "film watching" are emerging in the market. The protection of films' copyright will not recede with the diversity of content dissemination methods.
This judgment clearly points out that soundtrack is an important part of the original expression of a film, that disseminating the complete soundtrack of a film is deemed as disseminating the film itself and thus needs authorization from the right holder(s). Otherwise, the behavior will be liable for tort.