Pingtan artist Yang Zijiang v Suzhou Pingtan Group (case of copyright dispute).

On May 24th, 2004, a 79-year-old pingtan artist (formerly known as Yu) took Suzhou Pingtan Troupe to court. The original reporter claimed that he enjoyed the copyright of the storytelling work Emperor Kangxi according to law, but the defendant Suzhou Pingtan Troupe organized actors' performances many times and allowed TV stations to play videos and make CDs for sale without their consent, which seriously infringed the plaintiff's copyright. Therefore, the court is requested to order the defendant to immediately stop the infringement, publicly apologize and compensate the economic loss of RMB 50,000. Plaintiff Yang Zijiang became the first pingtan artist in China to raise the "copyright banner".

The defendant's judging panel held that the plaintiff did not enjoy the copyright of the explanatory work Emperor Kangxi, and the defendant's above-mentioned behavior did not belong to infringement. The performing art of Pingtan has always been passed down by word of mouth. It is natural for disciples to perform the songs handed down by Master, and there is no infringement. Otherwise, many traditional folk arts, including Suzhou Pingtan, will disappear gradually. The contradiction between the two sides was once very sharp, and the unprecedented new problem of "whether an explanatory work taught by an apprentice performer is infringing" caused an uproar in the art circles of two provinces and one city in the Yangtze River Delta.

Although the case was mediated by Suzhou Intermediate People's Court, the original defendant and the defendant finally reached a settlement agreement. However, many legal problems caused by this case, especially how to survive and protect traditional Quyi works under the legal framework of contemporary intellectual property law, are still worth discussing. As an attorney in this case, the author tries to make the following analysis on the facts and legal issues involved.

Controversy focus:

1. Does Changjiang enjoy the copyright of the commentary Emperor Kangxi?

2. Does the defendant Suzhou Pingtan Group's behavior constitute infringement? Can "master's money" be counted as a license fee?

Case study:

First, the copyright ownership of the explanatory work Emperor Kangxi in this case.

In this case, Yang Zijiang, the plaintiff, provided the written manuscript and performance tapes of Emperor Kangxi, arguing that his creation, adaptation and premiere of the work Emperor Kangxi should enjoy the copyright of the work. However, the defendant believes that there are no specific and fixed texts in the creation and inheritance of many tracks of Pingtan and Pinghua. The master sings the apprentice's notes, and the apprentice also recreates and deducts them during the performance. In fact, the content of the master's performance changes every time, and the apprentice will also add his own unique expression and content when performing the works taught by the master. Every performance has a script, but it is not completely loyal to the script. Therefore, judging from the copyright of written works, the works themselves can't be fixed, the ownership of copyright can't be determined, and the pingtan group has never used the works in the form of words.

The defendant also believed that Pingtan and Pinghua, as a traditional art form, did not belong to any individual, but were created, adapted, sorted out and handed down by artists of past dynasties based on historical stories, folk stories, legends and legendary stories. Their main plots are the same and unchangeable, and their forms and techniques have obvious personal characteristics. For example, stories such as The Hongmen Banquet, The Three Kingdoms vs. Lyu3 bu4, Song Wu Da Hu are the same in any storyteller's main story. The only difference is that everyone's expression is different from the added stunt. The story of Emperor Kangxi involved in this case itself comes from historical romance, which was not originally created by anyone. However, the defendant actor (that is, the plaintiff's apprentice) is obviously different from the plaintiff, adding a lot of elements that meet the tastes of contemporary audiences, which has obvious characteristics of the times and there is no infringement problem.

First of all, we should analyze the legal attribute of the critical work Emperor Kangxi in this case. Copyright refers to literary works, oral works and other works produced by academic works, literary and artistic creation, translation, assembly, speeches and explanations, and the rights that copyright owners should enjoy. Article 2 of the Regulations for the Implementation of the Copyright Law of People's Republic of China (PRC) stipulates that works refer to intellectual activities that are original and can be reproduced in some tangible form in the fields of literature, art and science. Article 4 of the Regulations stipulates that written works, oral works, musical works, dramatic works, folk art works, dance works, acrobatic works, fine arts works, architectural works, photographic works, film works and works, graphic works and model works created by methods similar to film production all belong to the category of works in the copyright law. Works protected by China's copyright law must be original. Originality refers to the author's independent creation, which is different from other works. It must be original, not mechanical intellectual achievement. But don't be original, and don't emphasize the degree of originality. As long as the work is not a copy of the existing work, but the author uses his own ideas and skills to process and sort it out according to his own understanding, and it is different from the existing work in the form of expression, you can think that the work is original.

Pingtan and Pinghua are performed in Suzhou dialect, which is widely spread in Jiangsu, Zhejiang and Shanghai. It is a folk rap art form with a long history. It is generally believed that rap techniques or techniques themselves are not "works" protected by copyright law, but the works produced after the creation, adaptation and arrangement of Pingtan repertoire are important manifestations of the above-mentioned works of folk art and belong to the category of copyright law protection. Even though the inheritance of Pingtan repertoire has always been taught by teachers and apprentices and imitated from generation to generation, Quyi works formed by fixing the repertoire on tangible carriers are one of the objects of copyright. During the trial, the plaintiff proved through a series of evidences that the pingtan track Emperor Kangxi, which was created, processed and arranged by him, and the script as a carrier formed a tangible Quyi work, which should be protected by the copyright law. The defendant argued that Emperor Kangxi's blueprint was Thirteen Dynasties of the Qing Palace written by Xu, a scholar in the late Qing Dynasty, but now Emperor Kangxi is deduced on the basis of the Qing drama, and the plaintiff also inherited the Qing drama, so the Yangtze River has no independent copyright to Emperor Kangxi. Moreover, the title of "Emperor Kangxi" was taken by the plaintiff's apprentice during the performance, not by the plaintiff. If we want to say the right of authorship of Emperor Kangxi, it should also be the plaintiff's apprentice. In addition, another apprentice of the plaintiff has adapted the original commentary version of Emperor Kangxi of the plaintiff into a tanci version, and the original track has undergone fundamental changes. Even if the main characters and themes haven't changed, it doesn't mean they are the same version.

According to Article 12 of the Copyright Law, the copyright of a work produced by adapting, translating, annotating and arranging an existing work shall be enjoyed by the person who adapted, translated, annotated and arranged the work, but the exercise of copyright shall not infringe the copyright of the original work. As for whether the plaintiff infringed the copyright of the author of Qing drama, it does not belong to the controversial content of this case and does not belong to the scope of court hearing. The track Emperor Kangxi, which was adapted, processed and arranged by the plaintiff, is protected by copyright law in China. Even if the defendant changes the title and version of the original play, as long as the main content of the original work is not changed, it still does not constitute a new work. According to the copyright law, the track Emperor Kangxi cannot enjoy copyright. The plaintiff believes that the defendant actor only innovated the skills of pingtan rap and formed his own style and characteristics, but the skills and methods do not belong to the scope of copyright law protection. As long as the content of the defendant actor's rap is the plaintiff's pingtan repertoire, it constitutes an infringement of the plaintiff's copyright.

Combined with this case, we will summarize the copyright issues of Pingtan and Pinghua works as follows:

1. Pingtan and Pinghua works can be protected by the copyright of oral works, and their written parts can be protected by the copyright of written works, and their performers enjoy the rights of performers according to law.

2. Quyi performance technology or skill itself is not a "work" protected by copyright law, and is not protected by copyright law.

3. It is debatable whether the storytelling subjects of storytelling works based on historical stories, folk stories, legends and legends are protected by copyright law if they are fixed and the same. Stories, subplots and stunts added and adapted by the author, if original, shall be protected by copyright law according to law.

Second, did the defendant infringe the plaintiff's copyright-the legal significance of "teachers' money"

(1) Tantan Quyi inherits the tradition.

In the historical tradition of Pingtan for thousands of years, the inheritance of Pingtan Quyi has always been "oral transmission". Students learn from teachers not only to learn skills, but also to master the songs handed down by Master and prepare for their future performances. In this case, in the 1980s, two actors of the defendant took the plaintiff as their teacher. In addition to the related storytelling skills, the apprentice also learned storytelling plays including Emperor Kangxi. Later, Emperor Kangxi was performed by disciples and also appeared on the stage of pingtan.

Zhao Kaisheng, a famous ci writers pianist, thinks that a teacher's art (including books) can't be separated from the discussion of books. The apprentice inherits the teacher's mantle, and Mr. Bai makes a living from books. It absolutely doesn't make sense to say goodbye to teacher Wang and not let the students perform. In addition, teachers will not interfere with students' normal performance and other income after teaching the bibliography to students. The Office of the Leading Group for Pingtan Work in Jiangsu, Zhejiang and Shanghai believes that, according to the traditional tradition of Pingtan, the relationship between the teacher and the apprentice is established through a certain ceremony, and usually the apprentice has to pay a certain amount of "apprentice money" to the master. Disciples not only learned rap skills from Master, but also learned Master's related songs. Students have the variability of oral rap in inheriting performances. Often, after inheriting the master's skills, apprentices constantly process and improve according to their own characteristics, constantly enrich and re-create, and often say that they are always new, which makes students' creative elements in the repertoire increase day by day. In the pingtan calendar, no apprentice sang the songs handed down by Master, which was regarded as infringement.

(B) the legal significance of the owner's money

Article 36 of the Copyright Law stipulates that performers (actors and performing units) who use other people's works to perform shall obtain permission from the copyright owner and pay remuneration. Where a performance organizer organizes a performance, it shall obtain the permission of the copyright owner and pay remuneration. Article 39 stipulates that producers of audio and video recordings shall obtain permission from the copyright owner and pay remuneration for using other people's works to produce audio and video products. In the tradition of pingtan, no one can perform other people's songs without going through the process of starting a teacher; If you want to perform other people's songs, you must pay the "teacher fee", otherwise you will be suspected of "stealing books". In this case, all the actors involved were apprentices of the plaintiff, Mr. Yang Zijiang, and all paid "teacher fees" when they were apprentices (150 yuan). The defendant believed that the apprentice's payment to Master meant that Master allowed the apprentice to perform the songs he had taught. In this sense, "teacher's money" can be understood as "one-time payment of remuneration for use", that is, under the permission of the copyright owner, the work can be used. When rules and regulations meet laws, contradictions become increasingly apparent. What is the real legal significance of "learning from the teacher" in this case? Can it be understood that a one-time license fee is charged according to the rules of the pingtan industry? There is no legal basis for this, and the two sides have not negotiated and confirmed the important legal issue of permission or not. In practice, we can only speculate by rules and regulations, "apprenticeship" and some communication between master and apprentice.

The collision between "rules" and laws is a concrete manifestation of social civilization and progress. Social relations need legal adjustment, which is also the foundation of legislation. Even if the relationship between legal adjustment is far from balanced as "rules and regulations", we still have to respect the law. Rules and regulations can exist, but they must be clear, sound and written, and at least there must be necessary written agreements. In an ancient country like China, intellectual property rights are facing many challenges, and traditional art is just one of them. The copyright law is not perfect in this respect. This is the first time that a similar lawsuit has been filed in the field of pingtan, and this topic deserves to be discussed from the perspective of pingtan art and law. (The author is a lawyer of Jiangsu Suzhou Xintianlun Law Firm.)