The emergence of livestreaming websites is posing new challenges for defining rights and infringement.

Case summary:

Plaintiff: Performing unauthorized songs is a violation of the right of performance and other rights.

The plaintiff-company Kirin Kid Productions Ltd owned the global property rights of an author of the song Little Leaping Frog (Xiao Tiao Wa). Without the plaintiff’s authorization or permission, or any payment, 12 livestreaming hosts performed this song 59 times in the livestreaming studios operated by the defendant, Wuhan Douyu Network Technology (Douyu). The plaintiff said that that behavior severely violated its copyright to the song including the right of performance. The plaintiff thus appealed to the Beijing Internet Court (BIC) claiming 118,000 yuan ($18,476.57) as economic losses and 12,000 yuan for legal expenses.

Defendant: Douyu did not commit infringement as it only provided neutral network services.

The defendant argued that the livestreaming video evidence was not obtained from the Douyu’s platform and thus did not prove that the infringement occurred in the Douyu studios. Douyu was not the party that committed the complained-of behavior. It only provided neutral network services. It was not involved in the planning, arrangement, promotion or editing of the livestreaming. Meanwhile, Douyu had proprietary rights over the livestreaming videos on its platform, which was a transferred ownership act according to contractual terms. The transferee (in this case Douyu) should not be responsible for the behavior of the transferor (in this case the hosts) before the transfers.

Focus of dispute:

1. Livestreaming videos taken from other platforms bore the watermark of Douyu. Did that infer the livestreaming took place in Douyu studios?

In civil litigation, the party bearing the burden of proof needs to provide evidence to a high degree of probability, but proof of civil facts does not require elimination of all reasonable doubt.

Considering that the behavior of livestreaming can be random and transient, it is hard for the right holders to foresee the behavior and collect and deposit evidence accordingly.

Current evidence collection technology can only review the incident from the video recordings of the livestreaming. Based on the submitted evidence and the displayed content of the videos, and according to normal procedures of livestreaming production and its transmission routes, it can be inferred that it is highly likely that the video was taken in Douyu studios.

Although the refutations of the defendant were possible, they did not reflect normal and general circumstances. The defendant had to provide evidence to prove the abnormal situation.

The defendant failed to provide evidence to support its refutations. Therefore, the BIC found the fact that the hosts involved had performed the song at Douyu studios. 

2. Is the behavior of performing songs during livestreaming without permission of songs' right holders a violation of the right of performance or other rights?

Livestreaming is direct broadcasting, which is a real-time communication that provides content to the public. In this case, the complained-of behavior was performing in a livestreaming studio and publicly broadcasting via a network. The rights involved are the right of performance and other rights as stipulated in Item 17, Aarticle 10 in the Copyright Law of the People's Republic of China.

The key to distinguishing the types of rights lies in the channels and technical means of communication. The scope of the right of performance covers the public communication behavior via "live performance" or "mechanical performance". Performing the work does not necessarily mean the behavior falls in the scope of the right of performance. The current provisions of the Copyright Law contain specifications on communication technologies and channels such as "slide projectors", "wired" and "wireless". Given the provision of the Copyright Law, the determination of the right in this case should be based on the communication channels used.

The key of communication channels in this case was public livestreaming via a network, which for the purpose of categorizing rights is consistent with other webcast behaviors such as regular and real-time broadcasting. Therefore, the BIC concluded that the behavior of performing in livestreaming studios and publicly communicating via a network falls within the scope of other rights as stipulated in Item 17, Article 10 of the Copyright Law. 

3. Did the defendant commit infringement? Should the defendant be the subject of liability?

In this case, the particularity of the online streaming business model should be taken into consideration. There were a large number of livestreaming hosts on Douyu who obtained profit by providing services such as game commentaries and arts performances. In some cases, they were the direct subject of commercialized operation and service providers of intangible commodities.

Did the defendant commit direct infringement?

The BIC determined that the hosts were the direct participants in the complained-of livestreaming behavior. The defendant was only the provider of online livestreaming technologies. There was no evidence that the defendant was involved in the planning and arrangement of the livestreaming sessions, or that it interfered in the scheduling or content of the sessions. Therefore the defendant did not commit direct infringement.

Did the defendant commit contributory infringement?

First, the hosts on Douyu gain profit by providing services such as game commentaries and arts performances which means usage of related game or performing resources is inevitable and thus at high risk for infringement. Second, the evidence showed that every host on Douyu must sign an agreement with the defendant which stipulates that the defendant acquired the intellectual property rights and other relevant rights and interests of all outcomes from the host during the livestreaming on its platform, or owned an exclusive license according to the modified version of the agreement. It could be concluded that the defendant obtained direct economic benefits from the host’s livestreaming content, and thus should bear a higher level of duty of care.

Third, the defendant provided online livestreaming service which features randomness and transientness. It did pose difficulties for the platform to manage the massive information generated from the livestreaming. However, that information also brought corresponding profit. The defendant should have matching management capacity and take corresponding measures to prevent infringement. For instance, the defendant could enhance hosts’ copyright awareness by stipulating in the contract that hosts need to obtain a package of authorizations before they apply the resources needed for the livestreaming.

In conclusion, the defendant failed to take infringement precautions matching with its profit when it should have been aware of the high infringement possibility of the livestreaming behavior involved. Therefore the defendant committed infringement and should bear corresponding civil liability.  

Details of the judgment:

The defendant was ordered to pay 37,400 yuan as economic losses and 12,000 yuan as legal expenses to the plaintiff within seven days of the judgment. The other claims of the plaintiff were dismissed. 

Significance:

This case sets the behavior boundaries for the online livestreaming business and provides guidance for the market entities in that industry.

For the first time, the trial defined the legal nature of online livestreaming performances and confirmed that it falls in the scope of other rights under copyright.

The trial also clarified the rules determining online livestreaming infringement, as well as the responsibilities of both online livestreaming technology service providers and livestreaming hosts.

This article is transferred from Beijing Internet Court, and thanks for it.