Jiang Kun: Quyi Copyright Protection in Progress

2010/08/23,By Kevin Nie, China IP,[Comprehensive Reports]

Finally we met with Jiang Kun! This time he did not serve as a cross talk actor, but as Party Secretary and Vice President of the Chinese Quyi Artists Association (CQAA).
In recent years, Jiang Kun has significantly performed less on stage as he has focused his efforts on fighting for the rights of Chinese Quyi artists (referring to such traditional Chinese folk art forms including the singing of ballads, story telling, comic dialogues, clapper talks and cross talks). Over the past two years, Jiang Kun has vigorously promoted rights protection for Quyi on various occasions, in the triple capacity of a famous cross talk performer, a leader of the CQAA, and a member of the CPPCC National Committee, and his remarks and articles frequently are quoted in the press on strengthening copyright protection for Quyi.
Quyi protection is urgent
Quyi works are very popular with the Chinese masses due to their lively styles and well-loved artistic features. Often used in large quantity, they are repeated regularly on radio, television, Internet, digital communications, audios, books, movies, railways, highways, civil aviation, and in other forms of media and carriers.
Quyi works, such as cross talks, have enjoyed high ratings in a variety of media formats for a long time because they are most popular and highly regional. Many types of media make full use of Quyi works for broadcast to attract public attention and continually raise ratings with the goal of increasing their advertising and sponsorship proceeds, and achieving their business values”, Jiang Kun told our Journalist.
In the meanwhile, acts of infringement of Quyi are seen repeatedly as users gain interest, directly or indirectly, through extensive use and adaptation of Quyi works. However, right holders cannot receive compensation. It is essentially a full-range and large-scale infringement. This not only infringes directly upon legitimate rights and interests of copyright holders, but also has serious effects on the whole Quyi community and development of Quyi arts in a sound and orderly manner. Some Quyi artists could not help but sigh: “When it comes to creation and protection in the Quyi community, comedians will not laugh at all.”
When talking about the severity of infringement regarding Quyi works, Jiang Kun said, “In our country, copyright protection of Quyi works has always been frail., Quyi works are used in a variety of streaming media at will, basically without any proper protection. Besides, 60% of audio and video products of Quyi are piracy and 40% are infringement. Among the 40%, only 1% was likely to have been licensed sometime in the past.”
Jiang Kun cited an example,saying: “Cross talks are broadcast everywhere across the country, either in planes, trains, cell phones or the network. Has anyone given us a penny? No. There are also some adaptations in animation and cartoons. In addition to such acts of infringement as use of other people’s works without stating authorship, public transmission and live broadcast of Quyi works without paying money and release of audio-visual products without remuneration, the traditional Quyi arts have confronted high-tech acts of infringement. Network flashes, animation cross talks and comic dialogues, and download engines and other high-tech means have “webbed” Quyi works including cross talks, comic skits, storytelling, clapper talks and story-telling in Beijing dialect with drum accompaniment, in a variety of forms such as broadcasts on demand, replay, adaptation, skewering and dubbing. Hou Baolin, Ma Sanli, Ma Ji, Feng Gong, Huang Hong, Niu Qun, Tian Lianyuan, Zhao Benshan, Gong Hanlin ... ... dead or alive, are not spared at all.”
“The most prominent is flash works, making use of our voices, our images, our works, our creativity, while Quyi authors and actors providing original copies and voices don’t obtain reasonable compensation, they haven’t even received any application for licensing from individual or unit users of their works. This is very abnormal.”Jiang Kun said.
Selected “2009 Man of the Chinese Copyright Industry” at the "2009 China Copyright Annual Conference" in November, Jiang Kun delivered a keynote speech as a representative of the award-winners. In his remarks, he stated, "Today I am here not in the capacity of an award winner, but as a victim." He pointed out that Quyi was one of the "worst-hit disaster areas" of infringement, and that he himself was a “victim.”
Various reasons behind inadequate protection
Jiang Kun held the view that currently copyright protection of Quyi features a high volume of uses in various forms and rampant acts of infringement. Compared to other kinds of arts, Quyi’s copyright protection has a very weak and sparse voice in society. The reasons are mainly as follows:
First, Quyi workers and users do not have a strong sense of copyright protection, and acts of infringement, either intentional or unintentional, are common. Quyi works, particularly cross talks, monologues and other comedic forms are greatly different from other art forms in the fact that their intellectual achievements are exclusive and cannot be reproduced. Additionally, because the public does not have a strong sense of copyright, some users, in their use of these works to reap benefits, ignore the rights of rights holders, leading to frequent unconscious acts of infringement.
Second is an imperfect legal system. Relevant laws and regulations are inadequate and industry standards are not sound. Specific laws and regulations need to be enacted. By way of example, China Copyright Law provides clearly that Quyi works fall into the scope of copyright protection and stipulates the detailed rights of copyright holders. However, there are no explicit provisions and requirements regarding obligations, amount of compensation, default liabilities and infringement penalties that may arise from use of copyrights by users, particularly by State-owned enterprises and organizations.
The Interim Measures for the Payment of Remunerations for the Broadcast of Sound Recordings by Radio and Television Stations, which took effect on January 1, 2010, has been a landmark event for achievements at this stage in current China's copyright protection work, providing reference for compensation criteria in protection of Quyi. Finally, we have seen the dawn.
Third is that it is difficult to strictly abide by the law. In this regard, Jiang Kun has had strong remarks: “I have addressed a very acute issue at the CPPCC sessions for ten consecutive years. We say it is not surprising that some of our works had been infringed in the absence of the rule of law in the past when it was utterly anarchic and lawless. But when the law is out there in the country, our copyrights and value of our creative works cannot be protected either, this is anarchic with the law.”
Furthermore, too many links and limitations are unclear. Quyi works often have many rights holders, and the difficulty to define has been an objective reason behind infringement. A Quyi work, if broadcasted on radio and television, has many rights holders in determining ownership of copyrights such as writers, performers and producers。 Legally, authorized use of a Quyi work needs consent from the three parties, and this gives rise to practical difficulties. In the face of such situation, many users choose a “short cut” to infringe. Moreover, the majority of China's Quyi artists have not had their copyright registered and are not experienced in authorization, thereby making it difficult to obtain relevant copyright protection in practice.
“The most important thing is the presence of strong media.”When talking about this point, Jiang Kun appeared to be slightly excited, “the value of our own creative works is much lower than that of repetitions. The value of creative works is often a one-off, once the payment is made, overbearing clauses are fixed accordingly and nobody will come back again on the matter. Is it an overbearing clause for a powerful media to dole out 500 yuan, 1,000 yuan or even 3,000 yuan to purchase lifetime broadcast rights? Most radio and television stations broadcast Quyi works, but neither the writer nor the performer can get any money. For instance, we demanded adaptation fees from China Central Television (CCTV), CCTV did not pay at all, and we had no other alternative. CCTV even said: It was we that paid for the filming, if you had the ability, you could pay to have it made by yourselves! ”
Collective management organizations underway
Currently, China has set up five copyright collective management organizations in music, videos, texts, photography and films, which have started to play an active role in protecting the rights of authors and promoting transmissions of works in relevant fields. However, there is not a corresponding collective management organization in the copyright of Quyi works. Some users, especially the relevant State departments, companies and enterprises which possess a large number of resources of Quyi programs, do not know “where to pay”, thereby directly causing infringement upon Quyi works. This translates into “violations committed knowingly.” Thus, the Quyi community has reached consensus over the establishment of a relevant copyright collective management organization, as soon as possible, to protect legitimate copyrights collectively. Jiang Kun said last year “establishment of the relevant copyright collective management organization and service agency should be put on the agenda in an urgent manner.”
In recent years the CQAA, under the guidance and help of the China Federation of Literary and Art Circles (CFLAC), has launched, a large number of activities to protect Quyi copyrights and has laid a solid foundation for the establishment of a copyright collective management organization.
In order to ensure practical protection of IP rights for artists, the CQAA founded the Rights Protection Working Commission in 2007 after obtaining approval from the CFLAC. The commission has obtained authorizations from over 100 performing artists and Quyi writers who entrusted the CQAA with the exercise of copyrights on their behalf. The establishment of the commission has laid a fine foundation for launching activities to protect Quyi copyrights. In the past couple of years, the CQAA has also entered into cooperation agreements with the Beijing International Copyright Exchange, Lezhong Interactive Culture Co., Ltd., and Media Corporation of Singapore with respect to the authorization of use of copyrights of relevant owners.
According to reports, promoted by Jiang Kun, the "Commission of Protection of Rights and Interests of Works by Chinese Quyi Artists" was also founded this year, dedicated to recovery of royalties. It is learned that Liu Lanfang, Jiang Kun, Huang Hong and Dai Zhicheng have already joined the “rights protection commission”, while terms of protection for works of late cross talk masters Hou Baolin, Liu Baorui and Ma Sanli have generally over 30 years, and their relatives also joined the “rights protection commission” after lobbying from the CQAA and entrusted the latter to handle their copyright infringement matters. Currently the CQAA is making contact with nationwide radio stations, the Internet media and lawyers, through the China Quyi website (www.cnquyi.com) to prepare for the establishment of a nationwide monitoring network.
On the eve of the opening of this year's “Two Sessions,” the CQAA published an open letter of rights protection to the media, urging the media to pay remuneration to copyrights holders in accordance with the Interim Measures for the Payment of Remunerations for the Broadcast of Sound Recordings by Radio and Television Stations. According to Jiang Kun, the Beijing People's Broadcasting Station Literature Station has consulted with the CQAA and expressed willingness to jointly safeguard and materialize paid use of broadcasts of audio products, and planned to become “the first station to protect copyrights.”
Jiang Kun, as a member of the CPPCC National Committee, submitted a proposal titled Protecting Quyi Copyrights and Implementing the System of Paid Broadcasts at this year’s "Two Sessions". He also revealed at the “Two Sessions” to the media that they had applied to the Ministry of Civil Affairs for establishment of a Quyi copyright collective management organization based on the realities of rights protection. The application is awaiting approval.
In the proposal, Jiang Kun spelled out in detail four specific steps they are going to take in the protection work, similar to the remuneration pattern of Karaoke music copyright royalties. The first step is to change the past phenomena of “much cry and little wool,” “only complaints, no effects”, “no organization, no administration”, and establish a Quyi copyright collective management organization. The second step is to collect royalties across China in accordance with remuneration standards for publication, adaptation, premiere broadcasts and repetitive broadcasts of Quyi works as provided in the Interim Measures for the Payment of Remunerations for the Broadcast of Sound Recordings by Radio and Television Stations. Later, they will call on the industry peers to eliminate “overbearing clauses” for one-off remuneration patterns and lifetime copyrights. The third step is to issue notices on domestic and international radio and TV media, headed by China Central Television and Central People’s Broadcasting Station, and ink contracts to discuss jointly concrete measures to safeguard Quyi copyrights. The fourth step is to make contact with local copyright protection organizations across China and hire lawyers to monitor broadcasts on television, radio, the Internet and other various media to protect the rights of Quyi artists.
Moreover, copyright protection also goes to Quyi practitioners beyond the system, experienced Quyi artists and late artists. This year, with plans to launch investigations and research into Quyi forms of intangible and oral cultural heritages listed across the country, the copyright registration and certification of Quyi inheritors have been defined as one of the important parts of the work.
Jiang Kun said the above steps are currently being implemented one by one. Concerning the possible difficulties in the overall collection of royalties later on, Jiang Kun summarized “four difficulties” : Firstly, difficulty in price negotiations. For example, we may demand 0.3 yuan per minute, while some TV stations may disagree; therefore, it is not easy to fix prices. Secondly, difficulty in enforcement of contracts, various forms of resistance may be confronted. Thirdly, difficulty in monitoring broadcasts, we have great difficulty in controlling specific lengths of broadcasts. Fourthly, difficulty in rights protection through legal means. We have to pay much more money to obtain compensation in our fight against piracy. It seems utterly impossible for us to go to court at cost of up to 10,000 Yuan to get 0.3 to 0.5 Yuan in compensation.
Protection of Quyi copyrights should mean protection not only from a variety of legal documents, protection from all levels of meetings, protection from various forums, but also protection in real practice.
“On the journey of Quyi rights protection, we only have taken the first step and still have a long meandering way to go in the future. We have to try painstakingly and are fully prepared for a long battle, ”said Jiang Kun.

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