Abstract Background Music charging system to protect the interests of creators and communicators, but also ensures that users' use of the work, but because of the unreasonable charges resulted in damage to users and the public interest, while the right people wide range of applications can not work to obtain benefits. This paper attempts to charge the legal basis for the background music, charging standard analysis to tease out the impact of its promotion and support for multi-stakeholder theory of equilibrium and to make reasonable suggestions.
Paper Keywords background music balance of interest charges
The present era, music is widely used. In the opera, ballet, opera and other integrated art, music is an important form factor; in film, television and advertising the film musical embellishment needs, but because of its rich content of the work, its characters and plump; in the cafe , bars, discount KTV and even supermarkets, shopping malls also need music to heighten the atmosphere, making atmosphere. For-profit public places, public broadcast musical works of others to charge management and help maintain lyricist, composer and performers and other creative people, audio and video recordings and other communicators who the legitimate interests, but also conducive to businesses and the general public and other users maximize the use of musical works, to meet their own needs. However, if the charging methods and standards there are certain problems, it is bound to the interests of both right holders and users have an impact.
Second, the legal basis for charging background music
The so-called background music charges, is in public places (including bars, KTV, hotels, restaurants and other public places of entertainment) public broadcast musical works of others, play the musical works shall pay remuneration to the author of a copyright system.
2002, background music charging system in Beijing, Tianjin, Shanghai and other places to start a pilot implementation of the system, once implemented, immediately attracted a lot of discussion, the focus is to use other people's background music is the pay that much money to pay. Undoubtedly, the background music is the copyright holder to reproduce the works in a way that mechanical performances that aid of technical devices voice, facial expressions, movements public performance work behavior. 'Mechanical performance' from the definition of the National Copyright  No. 43 document, 'National Copyright Administration Copyright Law Implementing Regulations Article in' performance 'of the specific application problems of interpretation', writes the file 'Copyright Law implementation of the provisions of Article 5 of the 'show' that the Copyright Law Article X of the 'performance' refers either directly or by means of technical equipment works protected by copyright law. Whether performing without commercial purposes, as long as the public, are under the law of copyright belonging performances performances form is divided into two kinds: first, referring directly to singing songs, playing music, staged plays or poetry readings and other forms of live public performances; secondly, publicly broadcast the aid of technical equipment, screening audio or audio-visual products and other forms of public performances, also known as mechanical performances in the form of public performance mechanical performances of works protected by copyright, users should first obtain the copyright owner or the copyright collective management organizations license and pay the appropriate compensation. ' That bars, hotels, restaurants, supermarkets, shopping malls and other public places, or for-profit institutions play in public, others musical works belong to the 'Copyright Law' and the definition of 'performance', the user shall be subject to licensing, with a 'performing rights' after in order to play music in the works within the premises, according to China's 'Copyright Law' provisions of Article X, performance rights is the exclusive property right in copyright, the copyright owner the right to license others to exercise or transfer of the right to receive remuneration. Therefore, the use of other people's music as background music should pay.
Third, the background music to promote the interests of the balance of fees
In 2004, the Music Copyright Society of China (hereinafter referred to as 'MCSC') to Chang'an mall without permission and pay fees will play background music at the mall music copyright infringement grounds to court; 2008, Beijing MerryMart supermarket without permission will be 'Candlelight mother' as background music in supermarkets are MCSC sued Beijing Haidian District People's Court. Whether these cases or others using similar infringement cases subject, supermarkets, shopping malls generally consider themselves not as KTV, bars direct use of musical works for profit, so should not be paid. However, I believe, supermarkets, shopping malls and public places are for-profit, open to the public. Customers shopping in the process to play background music, creating a relaxed and pleasant shopping environment, consumers are accompanied by music, song shopping, natural feel happy and mild excitement, and, when they heard a familiar and favorite song to a certain extent, the agitation caused by their own inner feelings and sympathy. Therefore, the Operational places to play background music should be recognized as an indirect profitable commercial use behavior, a reasonable fee for such acts to protect the interests of creators and disseminators.
Broadcast technology developed in the past era of communication, music is almost entirely dependent on live performances to spread, and the general public access to information about the work in the field is also limited to payment of a fee site to watch the show. At this time for music authors and the public interest is concerned, is relatively balanced. In recent years, recording techniques, radio and television technology, digital media technology, mobile Internet technology, interactive communications and networking technology is developing rapidly, live performances have been far from satisfied with the information needs of public access to works, and traditional tangible through the issuance of LP's business model is also increasingly decline, followed by the alternative is radio, television, the network's collective bombarded with information and MP3, mobile phones, computers and other digital media terminal information anytime, anywhere-the-box mode. Faced with this situation, the majority of the creators of musical works that composer, lyricist and disseminators namely performances, audio and video recording, music playback issuer spread its market share significantly abate. Plus supermarkets, shopping malls, hotels, cafes and other public places massive profit profitable use of musical works indirectly, more detract interests of rights holders, and thus, the background music as well as for the implementation of the concept of charging musical acts in favor of the rights ensure the dissemination of works while preserving the interests of rights holders, thereby restoring the interests of users and rights holders equilibrium reached user ease of use, the right holder shall have access to benefits, creation and dissemination of the results to be respected such a situation of balance of interests .
Fourth, the background music of charges on the balance of interests
Despite the charges for the use of background music can promote human rights and the use of the balance of interests between, however, it is obvious that such promotion based entirely on the basis of a reasonable fee.
According to China's 'Copyright Law' and 'Copyright Collective Management Regulations' (hereinafter referred to as the 'Regulations') of the relevant provisions of the copyright collective management organization with the copyright owner, the copyright and related rights of people authorized to enter into the relevant license to use and user Contracts and user fees, people turn right again to pay royalties. Music Copyright Society of China is currently the only music copyright collective management organization, is dedicated to maintaining composer, lyricist, and other related rights of the legitimate rights and interests of non-profit organization. MCSC to charge was based on the 'use of musical works to perform standard copyright license fee' (hereinafter referred to as 'standard'). At present, China uses a package of fee system, that is based on the user's place of business or the size of the area the number of passenger seats, number of rooms, number of devices and other factors to determine the amount of fees to be charged to use, user fees, you can At the appointed time, the use of the collective organization and management of all the works.
For this charging method and charging standard, I believe that, pending further consideration. 'Regulations' Article XIII shadow copyright collective management organization under a single use of the work, audio and video products, such as time, manner and geographical scope, as well as the right type of contract for licensing and user fees degree of sophistication of the work to develop the use of the standard fee charged, while showing in front of the public 'standard' does not reflect the spirit of the above provisions, the sole determinant of the reality of the system would adversely affect the function realization. Charges the mechanical performances in an area the size of the main factors to determine the fee for use needs to be improved to be particularly well. To apply to the store 'charges four' for example, in the same city, the same business circles within the range of common competition of different brands of supermarket operations, even for the same brand of supermarkets will consider the overall business strategy and distribution all levels of business in the city circle, and the resulting marketing positioning result is dissimilar because of geographical environment, traffic, different customers have different levels of operating performance. In this context, the supermarket when considering the use of musical works, must have their own individual needs. For example, under the same brand of A, B, C three supermarkets: A supermarket is located in the consulate, near the university, mostly foreign customers come to shop, the supermarket may be more suited for playing organ, piano, violin and other foreign instrumental tracks to enhance the supermarket affinity; B retired cadres or supermarket is located in the residential area, usually customers mostly in the elderly, then the supermarket is not suitable for playing the world's best domestic and foreign pop music, but should choose flute, dulcimer, Hulusi and other soothing, gentle domestic Instrumental tracks to health care for the elderly; C supermarket is located in the crowded commercial street or railway stations, often carry out promotional activities to increase its operating income, ordinary holiday promotions in the selection of slightly stronger dynamic concerts active atmosphere stores to attract customers , while in the New Year, Spring Festival and other major traditional Chinese festivals festive period will choose a song to render a festive atmosphere. So, just based on the user's operating area costs will manage to classify musical works package does not give users will not be able to obtain a reasonable fee, and will increase the user's operating costs, because the user according to marketing positioning will certainly choose a different category or categories of works, 'package sales' would only increase costs, waste of resources, and ultimately, businesses can not afford the operating costs in various forms attached to the goods, the consumer pay. It can be said, is not only unreasonable charges against the users of the public interest, but also result in the creation and dissemination of depriving people of the works can be more effective and wide spread use of the legitimate interests should be obtained.
Thus, only the cost of the investigation carried out price, accept user customization demand, combined with proportional fee system, mixing a variety of cost-recovery fee system mode, use the integrated music geographical environment, business turnover and other factors, to listen to consumers, operators and the views of interested parties and after a hearing held in prices in order to develop a reasonable price criteria, thus, achieve creators, disseminators, balance the interests of users.
March 28, 2012, O'Connell and the Music Copyright Society of China held a license to use music copyright agreement signing ceremony, becoming the first batch of China's footwear industry to the Music Copyright Society of China to obtain the relevant license of the enterprise. O'Connell move indicates that China has heightened awareness of copyright protection the private sector, business concept matures, also means that the implementation of the charging system background music has taken an important step forward. Public demand for music, and thus its scope is very broad, if only rely creator, disseminator or exercise the right to collective management organizations for rights litigation, and the public can not be spontaneous, active license application and pay the fee, legitimate interests of rights holders will still be infringed, correspondingly, as the user's business and the general public can not enjoy, rest assured that the use of musical works. No interest in a secure environment, the creators have no incentive to create good works, communicators fear the spread of piracy and not proactive outstanding works, the user due to unclear payment standards can not reasonably control operating costs, social the public will eventually not be able to compete eulogized popular musical masterpiece.
Copyright system is reasonable balance of interests is in its value orientation, which, Professor Wu Handong that 'the spirit of the pursuit of this balance is essentially coordinated various conflicts among the factors in a state of harmony, which includes copyright holder the balance of rights and obligations, creators, disseminators, the balance of the relationship among users, public and personal interests of balance. 'Background Music charging system is adhering to the spirit of the balance of interests, efforts to promote the personal and the public interest demands harmonious coexistence, to achieve the interests of the private ownership of the copyright and the public on the use of information coordination between.