Plaintiff: China Audio-Video Copyright Association, Room 401, Jinguang Center Business Building, Hujialou Street, Chaoyang District, Beijing

Legal representative：Wang Huapeng, Director-general

Designated agent：Zhou Yaping, male, born on 8 January 1954, of Han nationality, director of this association, No. 601, Huixinxili, Chaoyang District, Beijing

Designated agent：Gou Puliang, male, born on 16 January 1985, of Han nationality, staff of this association, Dingcun Village, Panggezhuang Town, Daxing District, Beijing

Defendant: Beijing Yuanyang Mingdu Entertainment Co., Ltd., No. 15, East 3rd Road South, Chaoyang District, Beijing 

Legal representative：Zhao Liangbin, Manager  

Designated agent：Lu Jun, female, Han nationality, born on 19 October 1967, Director of this company, Tuanjiehu Nanli, Chaoyang District, Beijing

This court, after filing on 27 October 2008 the case China Audio-Video Copyright Association (hereinafter referred to as “CAVCA”) (plaintiff) v. Beijing Yuanyang Mingdu Entertainment Co., Ltd. (hereinafter referred to as “Yuanyang Mingdu Entertainment Company” ) (defendant) for copyright infringement, duly formed a collegiate panel and held an open trial on 2 December 2008. Appearing at the court for debate were Zhou Yaping and Gou Puliang, attorneys of CAVCA, and Zhao Liangbin, legal representative of Yuanyang Mingdu Entertainment Company. The case has now come to a close.

CAVCA alleges that: our association is the unique audio-video copyright administration established with the formal approval from National Copyright Administration and shall perform collective administration of the copyright of audio-video programs and the rights related to copyright as per law. Since 2008, our association has successively signed Audio-Video Copyright Authorization Contract with the right owner and obtained the right of playing, renting, broadcasting and reproducing many TV works of the right owner. Our association is entitled to lodge a complaint against the tort of the music TV works in the name of our own. In accordance with investigation, Yuanyang Mingdu Entertainment Company has completely recorded 45 music TV works in other business places without approval of the right owner or paying any expenses, which infringes the right of playing and reproducing of the right owner. Hereby our association lodges a complaint to require that Yuanyang Mingdu Entertainment Company to stop tort and delete the involved music TV works as well as compensate RMB 200,000 Yuan in total for our economic loss and proper expenses.

Yuanyang Mingdu Entertainment Company contends that its company doesn’t know the organization of CAVCA, which charges without gist and in an improper way. The song database claimed by CAVCA is the karaoke machine installed just for trial use. The amount demanded is too high. Thus, our company fails to agree on the claims of the CAVCA.

The court identified facts by trial as follows: CAVCA is an audio-video copyright administration established on 24 June 2008 with the formal approval from National Copyright Administration. From 22 July 2008 to 13 November 2008, CAVCA successively signed Audio-Video Copyright Authorization Contract with Beijing Niaoren Art Promotion Co., Ltd. (hereinafter referred to as “Niaoren Company” ), Kongquelang Amusement & Record Co., Ltd. in Shunde District, Foshan City (hereinafter referred to as “Kongquelang Company’ ), Beijing Tianzhong Culture Development Co., Ltd. (hereinafter referred to as “Tianzhong Company” ), Zhengda International Music Composition Center (hereinafter referred to as “Zhengda Center” ), Beijing Xinggongchang Entertainment Co., Ltd. (hereinafter referred to as “Xinggongchang Company” ), Guangzhou Xinshidai Audio-Video Co., Ltd. (hereinafter referred to as “Xinshidai Company” ), China Record Guangzhou Corp. (hereinafter referred to as “CRGC” ), Beijing Taihe Rye Music Co., Ltd. (hereinafter referred to as “Taihe Rye” ), Beijing Zhushufang Entertainment Co., Ltd. (hereinafter referred to as “Zhushufang Company” ) and Beijing Jiuyutian Music Culture Development Co., Ltd. (hereinafter referred to as “Jiuyutian Company” ). In accordance with the agreement under the contract mentioned above, Niaoren Company, Kongquelang Company, Tianzhong Company, Zhengda Center, Xinggongchang Company, Xinshidai Company, CRGC, Taihe Rye, Zhushufang Company and Jiuyutian Company agree to entrust their rights of playing and reproducing to CAVCA as per law, including the 45 music TV works claimed by CAVCA (refer to the attached tables for details and hereinafter referred to as involved music TV works).

The business scope of Yuanyang Mingdu Entertainment Company includes: self-service amusement, sports items and cold products containing milk. Yuanyang Mingdu Entertainment Company owns 53 KTV rooms, charging RMB 6 to 30 Yuan per hour in accordance with the size of the room. The used karaoke machine includes the involved music TV works. CAVCA applied Beijing Changan Notary Public Office for notarization of the tort of Yuanyang Mingdu Entertainment Company in terms of using the involved music TV works and paid RMB 3,180 Yuan for notarization. Yuanyang Mingdu Entertainment Company failed to pay any expenses for using the involved music TV works.

The fact mentioned above is proved by Audio-Video Copyright Authorization Contract, audio-video products, notarial deed, notes for notarization expenses and the statement of the party.  

Our court holds that: pursuant to Copyright Law of the People’s Republic of China and regulations of relevant laws, with the authorization from the right owner, the copyright collective management organizations are entitled to lodge a complaint in the name of their own. CAVCA, as an audio-video copyright collective management organization established as per law, has successively signed Audio-Video Copyright Authorization Contract, which endows it with the right of managing the playing and reproducing of the involved music TV works. It is entitled to lodge a complaint against the tortfeasor for his/her tort of right of playing and reproducing the involved music TV works in the name of its own.

Yuanyang Mingdu Entertainment Company applied the involved music TV works to its KTV operation, without license or paying. Thus, its act is a kind of tort. It shall stop tort and compensate the loss. In terms of the detailed compensation amount, our court will judge and decide with comprehensive consideration into the quantity of the involved music TV works, way of use by Yuanyang Mingdu Entertainment Company and its way and scope of operation and etc.

To conclude, pursuant to Clause 1 of Article 8 and Item (I) of Article 47 and Article 48 of Copyright Law of the People’s Republic of China, we hereby decide as follows:

I.    Yuanyang Mingdu Entertainment Company shall stop the use of the involved 45 music TV works;

II.    Yuanyang Mingdu Entertainment Company shall, within 10 days since the date when the judgment comes into effect, pay RMB 70,000 Yuan (SAY RMB SEVENTY THOUSAND ONLY) to China Audio-Video Copyright Association as compensation;

III.    Beijing Yuanyang Mingdu Entertainment Co., Ltd. shall, within 10 days since the date when the judgment comes into effect, pay RMB 3,180 Yuan (SAY RMB THREE THOUSAND ONE HUNDRED AND EIGHTY ONLY) to China Audio-Video Copyright Association for its proper expenditure for prohibition of tort;

IV.    Other claims of China Audio-Video Copyright Association are rejected.  

Should it fail to perform the obligation of payment within the period appointed by this judgment, Beijing Yuanyang Mingdu Entertainment Co., Ltd. shall, pursuant to Article 229 of Civil Procedure Law of the People's Republic of China, pay double liability interest occurred during the delayed period.

The cost of this lawsuit is RMB 4,300 Yuan (SAY RMB FOUR THOUSAND THREE HUNDRED ONLY), which shall be paid by Beijing Yuanyang Mingdu Entertainment Co., Ltd. (within 7 days after coming into effect of the judgment).  

Either party that refuses to accept this judgment as final may, within 15 (fifteen) days after service of this judgment, appeal to Beijing No. 2 Intermediate People's Court by submitting an appeal petition to this court together with a sufficient number of copies for each party to have one.

Presiding judge：Xie Zhenke

People's jury: ing Jinli

People's jury: Zhang Yanqin

二ＯＯ八 年 十二 月 十九 日

29 December 2008

Court clerk: Bo Wen

--------------------------------------------------------

作者：zhongmsn

来源：百度文库

在此感谢百度文库提供的优质文章。